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ENDANGERED SPECIES ACT: WASHINGTON, DC-
PART III

HEAEING

BEFORE THE

TASK FORCE ON THE
ENDANGERED SPECIES ACT

OF THE

COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION
ON

THE IMPACT OF THE ENDANGERED SPECIES ACT ON
THE NATION

MAY 25, 1995

Serial No. 104-18

RbCef^/i^ff

.e of the Committee on Resources

Jul 0 ! £ujJ

BOSTO.'.PUSLIG LIBRA

GOVERNMP^-. DOCUMENTS oePARTMEN'

^^#

^$1^

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1995

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressiona] Sales Office, Washington, DC 20402
ISBN 0-16-047571-6

V<Y, 'f3i/^'l<^^-'S'
ENDANGERED SPECIES ACT: WASHINGTON, DC-
PART III

HEARING

BEFORE THE

TASK FORCE ON THE
ENDANGERED SPECIES ACT

OF THE

COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION
ON

THE IMPACT OF THE ENDANGERED SPECIES ACT ON
THE NATION

MAY 25, 1995

Serial No. 104-18

RbCfeiVecr

le of the Committee on Resources

i JUL 3 1 2003

B0ST0JPU8LIG LIBRA

GOVERN^??!. noCUMENTS oePARTMEN

i0^

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1995

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-0A7571-6

COMMITTEE ON RESOURCES

DON YOUNG,
JAMES V. HANSEN, Utah
JIM SAXTON. New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE ALLARD, Colorado
WAYNE T. GILCHREST, Maryland
KEN CALVERT. CaUfomia
RICHARD W. POMBO, California
PETER G. TORKILDSEN, Massachusetts
J.D. HAYWORTH, Arizona
FRANK A. CREMEANS, Ohio
BARBARA CUBIN, Wyoming
WES COOLEY, Oregon
HELEN CHENOWETH, Idaho
LINDA SMITH, Washington
GEORGE P. RADANOVICH. CaUfornia
WALTER B. JONES, Jr., North CaroUna
WILLL\M M. (MAC) THORNBERRY, Texas
RICHARD (DOC) HASTINGS, Washington
JACK METCALF, Washington
JAMES B. LONGLEY, Jr., Maine
JOHN B. SHADEGG, Arizona
JOHN E. ENSIGN, Nevada

Alaska, Chairman

GEORGE MILLER, California
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PAT WILLIAMS, Montana
SAM GEJDENSON, Connecticut
BILL RICHARDSON. New Mexico
PETER A. DeFAZIO. Oregon
ENI F.H. FALEOMAVAEGA, American

Samoa
TIM JOHNSON, South Dakota
NEIL ABERCROMBIE, Hawaii
GERRY E. STUDDS, Massachusetts
W.J. (BILLY) TAUZIN, Louisiana
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELO, Puerto

Rico
MAURICE D. HINCHEY. New York
ROBERT A. UNDERWOOD, Guam
SAM FARR, California

Daniel Val Kish, Chief of Staff

David Dye, Chief Counsel

Christine Kennedy, Chief Clerk /Administrator

John Lawrence, Democratic Staff Director

Task Force on Endangered Species Act

RICHARD POMBO, California, Chairman

WAYNE T. GILCHREST, Maryland

JOHN T. DOOLITTLE, CaUfornia

J.D. HAYWORTH, Arizona

BARBARA CUBIN, Wyoming

WES COOLEY. Oregon

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WILLIAM M. (MAC) THORNBERRY, Texas

RICHARD (DOC) HASTINGS, Washington

JACK METCALF, Washington

GERRY E. STUDDS, Massachusetts
ENI F.H. FALEOMAVAEGA, Am. Samoa
CALVIN M. DOOLEY, CaUfornia
MAURICE D. HINCHEY, New York
W.J. (BILLY) TAUZIN, Louisiana
BRUCE F. VENTO, Minnesota
SOLOMON P. ORTIZ, Texas

(II)

CONTENTS

Page

Hearing held May 25, 1995 1

Statement of Members:

Duncan, Hon. John J., Jr., a U.S. Representative from Tennessee 4

Pombo, Hon. Richard, a U.S. Representative from California, and Chair-
man, Task Force on Endangered Species Act 1

Studds, Hon. Gerry E., a U.S. Representative from Massachusetts 2

Statement of Witnesses:

Avery, Dennis T., The Hudson Institute 54

Prepared statement 168

Beattie, Mollie, Director, U.S. Fish and Wildlife Service, DOI 6

Brown, Dr. William Y., Principal, RCG/Hagler Bailly, member. National
Research Council, Committee on Scientific Issues in the Endangered

Species Act 73

Prepared statement 221

Cade, Dr. Tom J., The Peregrine Fund, Boise, ID 68

Prepared statement 192

Cameron, Dr. David G., retired wildlife geneticist 52

Prepared statement 163

Clegg, Michael T., Chair, Committee on Scientific Issues in the Endan-
gered Species Act (prepared statement) 215

Frampton, George T., Jr., Assistant Secretary, Fish, Wildlife and Parks,

U.S. Department of the Interior 6

Prepared statement with attachments 83

Gingrich, Hon. Newt, a U.S. Representative from Georgia, and Speaker,

House of Representative 19

Gordon, Robert, National Wilderness Institute 71

Prepared statement 200

Howell, W. Mike, Ph.D., Professor of Biology, Samford University (pre-
pared statement) 239

Jauhola, Christine, Group Leader for Wildlife, Fisheries, Range Land

and Forest Land, Bureau of Land Management, DOI 6

Kangas, Patrick, Natural Resource Management Program, University of

Maryland 46

Prepared statement 144

KourUs, Thomas A., Commissioner of Agriculture, State of Colorado 11

Prepared statement 133

Maple, Terry L., Ph.D., Zoo Atlanta 47

Prepared statement 148

National Association of Realtors (prepared statement) 230

Richardson, Terry D., Ph.D., and Paul Yokel, Jr., Ph.D., University of

North Alabama (prepared statement) 247

Schmitten, Holland, Director, National Marine Fisheries Service, Depart-
ment of Commerce 7

Prepared statement Ill

Simberloff, Daniel, Florida State University 44

Prepared statement 137

Unger, David G., Associate Chief, Forest Service, Department of Agri-
culture 10

Prepared statement 125

Wheeler, Nicholas, Ph.D., Weyerhaeuser 50

Prepared statement 156

Wood, Gene, Society of American Foresters, Clemson University 67

Prepared statement 182

(III)

Page

Additional material supplied:

Interior Dept: Facts about the Endangered Species Act 274

Communications submitted:

Frampton, George T., Jr. (DOI): Letter of July 28, 1995, to Hon. Richard

Pombo with responses to questions 253

Torrence, Paul F., Ph.D.: Letter to Hon. Richard Pombo dated March

14, 1995 225

Woods, GiU, Jr. (Nat. Assn. of Realtors): Letter of June 1, 1995, to
Hon. Don Young 229

ENDANGERED SPECIES ACT: WASfflNGTON,
DC— PART III

THURSDAY, MAY 25, 1995

House of Representatives,
Endangered Species Act Task Force,

Committee on Resources,

Washington, DC.
The task force met, pursuant to call, at 12:05 p.m. in room 1324,
Longworth House Office Building, Hon. Richard W. Pombo (chair-
man of the task force) presiding.

Mr. PoMBO. Good morning. We are going to call the Endangered
Species Act Task Force to order.

STATEMENT OF THE HON. RICHARD POMBO, A U.S. REP-
RESENTATIVE FROM CALIFORNIA, AND CHAIRMAN, TASK
FORCE ON ENDANGERED SPECIES ACT

Mr. PoMBO. I would like to — well, I guess it is afternoon now. I
would like to welcome all of you to this hearing today of the ESA
Task Force of the Committee on Resources. This is the 10th and
final hearing of the task force, and with this hearing we complete
the most comprehensive congressional investigation and review
that has ever been undertaken on the Endangered Species Act.

We have invited several officials from the Interior and Agri-
culture Departments responsible for administering the act. We
have also invited two panels of individuals with scientific and tech-
nical backgrounds and knowledge who will testify on the scientific
underpinnings of the act. We will also be joined later today by the
Speaker of the House, the Honorable Newt Gingrich.

Over the course of the past three months, the task force has held
seven field hearings from coast to coast and three more here in
Washington, B.C. There has been tremendous public interest and
participation in the hearings. We have held more field hearings in
1995 than all the previous 22 years since the act was signed into
law.

Over 100 witnesses testified at the seven field hearings. Three-
fourths of them had never testified before Congress and had their
first opportunity to speak directly to a panel of lawmakers. In total,
154 people will have spoken at the 10 hearings.

More than 8,000 people attended the field hearings, for an aver-
age attendance in excess of 1,000 per hearing.

Twenty-five Members of Congress participated in the bipartisan
field hearings, including seven Democrats and 18 Republicans.

Over 5,000 citizens have written to the task force, making sug-
gestions for reform and improvements in the Endangered Species

(1)

Act. Their correspondence fills several large boxes and weighs over
127 pounds.

When the Endangered Species Act was first adopted by Congress
in 1973, only three hearings were held on the legislation, all of
them in Washington. In the 22 years since, only three hearings
were held outside Washington, D.C., before the creation of this task
force.

The real lessons that we are learning through this process is the
importance of continuing to rely on the democratic ideals upon
which our government was founded. Our Constitution and our form
of government are as relevant and essential today as when it was
adopted in 1788. Our Bill of Rights ensures that the rights of every
individual American are protected, even against the will of the ma-
jority if the majority goes too far. One of the key elements of the
Bill of Rights is the protection of private property from confiscation
for government use, without the payment of just compensation, no
matter how important or essential that government use may be.

Today we will hear from a number of individuals who have been
involved in various scientific issues surrounding the Endangered
Species Act. While I agree that it is important to consider the
views of scientists and that science is one of the key factors in this
debate, it is our job to ensure that science is not used as an excuse
or a basis for trampling on the constitutional or legal rights of any
individual. While our wildlife and plants have enormous value, so
do our civil and constitutional freedoms.

It is important that science provide us with good information for
making public policy, but the public policy has limits. Those limits
include how to best use the taxes we pay, how to meet other equal-
ly important needs and how to protect the civil rights of our people.

We hope that the scientific community will meet the challenge of
improving the information that we base our decisions upon, and we
also hope that we will include in their deliberations some concern
for protecting the foundations of our democracy.

Thank all of you for your participation, and I look forward to
your testimony today.

I would at this time like to recognize the Ranking Member, Mr.
Studds.

STATEMENT OF HON. GERRY E. STUDDS, A U.S.
REPRESENTATIVE FROM MASSACHUSETTS

Mr. Studds. Thank you very much, Mr. Chairman.

I would like to begin with an apology and explanation. I am
going to have to leave right after — quite possibly during my open-
ing statement. We have a very major markup going on simulta-
neously across the street; and, thanks to our reforms, there is no
such thing as proxy voting. So I will get back as often and as quick-
ly as I can.

I would like to begin with a quotation, if I may: "Various species
of fish, wildlife and plants in the United States have been rendered
extinct as a consequence of economic growth and development
untempered by adequate concern and conservation. These species
of fish, wildlife and plants are of aesthetic, ecological, educational,
historical, recreational and scientific value to the Nation and its
people."

Those words were written 22 years ago as part of the congres-
sional findings in an Endangered Species Act which enjoyed broad
bipartisan support and was signed into law by that renowned
ecoterrorist, Richard Nixon.

Those words express the collective concern of this Nation's citi-
zens, its Congress and its President about the alarming rate of spe-
cies decline throughout the world. And those words, I am sorry to
say, ring no less true today.

There are now 700 species of plants and animals which are
threatened or endangered. Hundreds more are in decline, and I
hope it doesn't mar my reputation as an irrepressible optimist to
report that we are approaching the rate of mass extinction as omi-
nous as that witnessed by the dinosaurs. That period of devastation
left behind the Tyrannosaurus Rex skull, now displayed in the of-
fice of our Speaker, the very same Speaker incidentally who, as I
think you know, last session cosponsored Mr. Dingell's and my re-
authorization act, and I await with great interest what he has to
say.

Unlike in the cretaceous period, however, this time the cause of
extinction is human. We have all heard horror stories about the
regulatory overreaching of the act. They should begin our review
of the act, not end it. As we recoil from tales of a Federal tree hook-
ing conspiracy, we should not lose sight of the volumes of horror
stories of the ESA that Richard Nixon and John Dingell drafted to
avert.

Massachusetts settlers once wrote in their journals that they
could almost walk across Cape Cod Bay on the backs of the white
whales that fed and nursed their calves in those waters. As we all
know. North Atlantic white whales were later slaughtered by the
thousands, and their habitat and food sources have been spoiled
recklessly and continuously. Now, even after decades of protection
from hunting, there are fewer than 350 in the entire world.

There was also a time when you could stand at the banks of the
Snake River in the Northwest and watch it turn blood red as thou-
sands of sockeye made their way from the ocean up to their spawn-
ing grounds. From that same bank today, you would be lucky to
spot one of the few remaining fish.

Salmon evolved throughout drought, el ninos, predators and the
arduous journey upstream, but their genes never developed suffi-
ciently to avoid hydropower turbines.

Preserving the whale or salmon in our own land is no less dra-
matic for anyone with even a fleeting appreciation for diversity on
this earth in saving a snow leopard in the Himalayas or a moun-
tain gorilla in Rwanda.

At our recent hearings, I made some observations about the tone
of the ESA debate, but that is not the whole story. The substantive
questions on the table before us are deadly serious. It is our job to
decide quite literally what life is worth — not a single life, but the
future of entire species.

Nearly everyone on this dais and on both sides of the partisan
aisle opposes gutting the act, but what precisely does that mean?
Whose life is worth how much and by what measure? How do we
calculate the costs — economic, recreational, spiritual and environ-
mental— of failing to save species from extinction? It is no illusion

that those questions sound metaphysical. That happens when you
start talking about potential cures for life-threatening diseases and
about humility before matters of cosmic proportions.

But if you think these are mindless abstractions, I would be
happy to introduce you to the captains of boats in my district's mil-
lion-dollar-a-year whale watch fleet and presidents of local cham-
bers of commerce who believe passionately that the environment is
our economy as well as our solemn responsibility.

Throughout this debate, colleagues on all sides have stressed the
need for the best available science. I agree. That is why three years
ago, along with Senator Hatfield and then Speaker Foley, who were
themselves a bit stressed by a certain spotted nocturnal creature,
we all together asked the National Academy of Sciences to review
the scientific foundations of the ESA, which still preoccupy this
task force, including recovery efforts, definition of species and habi-
tat protection.

That study, released yesterday, concludes that the only way to
prevent extinctions is to protect the natural habitat of threatened
and endangered plants and animals. Its analysis can help us dis-
tinguish matters of science from matters of policy and to distin-
guish fact from anecdote.

We will hear testimony shortly from one of the study's authors
who, I suspect and hope, will summarize the 162 pages of that re-
port. If we listen and if we learn, I think we can all leave today's
hearing a little better informed and perhaps a little wiser.

Thank you, Mr. Chairman.

Mr. POMBO. Thank you.

With unanimous consent, I would like to include all other open-
ing statements in the record and introduce our first panel of wit-
nesses.

[The statement of Mr. Duncan follows:]

Statement of Hon. John J. Duncan, Jr., a U.S. Representative from

Tennessee

I do not think that there is one Member of Congress who wants to see any life
form become extinct. However, many of us recognize that there is a vast array of
species, including humans, which must occupy a limited amount of space.

Currently, there are over 900 species listed as endangered or threatened in the
United States.

If you rank States according to the number of species that each has, my State,
Tennessee, ranks 5th. There are 84 listed species in Tennessee. That is almost one
species for each county in our State. There are another 213 species which are being
considered for listing. If all these species are ultimately Usted that would mean that
each county in the State, on average, would have three listed species.

Even here in the District of Columbia there are three species listed as threatened
cr endangered.

Through hearings held in the Resources' Subcommittee on Parks, Forests, and
Lands, we have learned that the Federal Government owns 30 percent of all the
land in the United States.

It has been estimated that State and local governments own another ten percent
of all the land in the U.S. Quasi-government entities own an additional nine per-
cent.

I have not been able to find any estimate on what percentage of land is
undevelopable because it is set aside as critical habitat for listed species. However,
a recent report released by the Government Accounting Office stated that 90 percent
of all species are found on non-Federal lands.

If State, local, and Federal governments own 50 percent of all the lands in the
U.S., and when we consider all the land that is set aside for species habitat and
wetlands preservation, then there is very little land for development. Furthermore,

the land which is left for development is so expensive that the average American
family starting out cannot afford to purchase a piece of property to build a home.

In the Parks Subcommittee, we try to encourage private individuals or organiza-
tions to preserve what they feel should be preserved because the Federal Govern-
ment can no longer afford to create new parks.

People can and will preserve our lands without a government mandate. For exam-
ple, one of the most important historic sites in the country, Mount Vernon, has been
preserved and is operated by a private organization. There are many others like The
Alamo in Texas and the Biltmore House in North Carolina.

It is my understanding that there are no incentives in the Act to encourage pri-
vate individuals or organizations to preserve species. As the Act is administered, in-
dividuals are punished through regulations by having a listed species on their prop-
erty. I believe we need to amend this Act in such a way that we provide private
property owners with incentives to save endangered species, not threaten them with
regulatory measures which devalue their land.

We are all aware of the impacts that listing the spotted owl had on the Pacific
Northwest. However, incidents such as this occur in the East.

For example, my colleague from West Tennessee, Congressman Ed Bryant, testi-
fied before the Endangered Species Task Force about the Duck River Dgmi in Co-
lumbia, Tennessee.

In his testimony, he noted that the Tennessee Valley Authority began construc-
tion on the dam in 1973. Since 1972 the people in Columbia Tennessee, have paid
a total of $4.5 million in a surcharge that was placed on their water to help com-
plete the dam. By 1983, TVA spent $84 million and had completed 90% of the con-
crete portion of the dam when a species in the river was listed, and the project was
stopped. I think it is ridiculous that taxpayer dollars are wasted in tlus manner.

Not only does this Act cost taxpayers inillions of dollars through regulations, the
recovery programs for species are increasingly expensive. For instance, the U.S.
Fish and Wildlife Service plans to spend $70.2 million to help the blunt-nosed leop-
ard lizard "recover." The agency has other recovery plans such as $85.9 million for
the loggerhead tvutle; $53.5 million on the black-capped vireo and $29 million on
the swamp pink. Even though we are spending all this money, not one species has
been recovered and delisted as a direct resvilt of this Act.

I beUeve that we need those who are responsible for the administration of this
Act to carry out their duties in such a manner that they are considerate of taxpayer
funds and more respectful of the average landowner.

As I have said many times, the key to protecting the environment is balance. We
must develop a strategy that balances the goals of environmental protection with
requirements for economic stability. I beUeve that there is a balance that can be
achieved in our search for an effective environmental policy if we are willing to find
it.

It is my sincere hope that we can amend this Act to provide a more balanced ap-
proach to species preservation.

Mr. POMBO. We have Mr. George Frampton, the Assistant Sec-
retary of Fish and Wildlife in the U.S. Department of Interior; Hol-
land Schmitten, Director, National Marine Fisheries Service; David
Unger, Associate Chief, Forest Service; and Thomas Kourlis, Com-
missioner of Agriculture, State of Colorado.

Mr. Frampton, you may begin.

And before you start, you guys have seen the lights before. We
want to try to stay within the five-minute time period. Green, go;
yellow, hurry up; and red, stop. And if you could try to stay with
that as much as possible, I would appreciate it.

Mr. Frampton.

STATEMENT OF GEORGE T. FRAMPTON, JR., ASSISTANT SEC-
RETARY, FISH, WILDLIFE AND PARKS, U.S. DEPARTMENT OF
INTERIOR, ACCOMPANIED BY MOLLIE BEATTIE, DIRECTOR
OF THE U.S. FISH AND WILDLIFE SERVICE; AND CHRISTINE
JAUHOLA, GROUP LEADER FOR WILDLIFE, FISHERIES,
RANGE LAND AND FOREST LAND, FOR THE BUREAU OF
LAND MANAGEMENT

Mr. Frampton. Thank you, Mr. Chairman.

I have submitted a lengthy statement for the record detailing the
actions that the Administration has taken over the last two years
to try to make the Endangered Species Act work better for species
and the regulated public.

To summarize, we think that the underlying purposes of this act,
to protect imperiled species and habitats and biodiversity, are im-
portant American public purposes and enjoy broad public support.

We also think the Endangered Species Act itself has worked well
in many, if not most, cases, that it has been successful in prevent-
ing species from going extinct and moving other species toward re-
covery. We know that the Endangered Species Act has problems,
problems in terms of certainty and equity, predictability, and prob-
lems in terms of its effectiveness in protecting species as well.

We think that we have moved, under the existing law, with regu-
lations and policies and strategies to solve some of those problems.
Other problems require changes in the law, and we have put on the
table a menu of amendments to the Endangered Species Act we
think will allow us to carry that program out.

I think probably it is fair to say that the place where the Act has
worked the best in the last 15 years or 20 years has been in its
direction to Federal agencies to work together to make sure that
their projects and programs avoid causing extinction.

You look at the last five-year period in which this was studied,
of nearly 100,000 formal and informal consultations under section
7, only several hundred jeopardy opinions resulted and only about
50 projects or programs, l/20th of 1 percent, actually were with-
drawn or stopped, which means that the agencies have adjusted in
their planning processes.

Where the Act hasn't worked well in terms of Federal agency ac-
tions has been where the agencies have not followed their own laws
and/or not worked together. The Pacific Northwest is a paradigm
where the result of both of those happening was that the Federal
timber program went into court receivership for several years.

In that respect, I think this Administration has made the Act
work better because we have caused agencies to work together. The
President's forest plan is an example. In south Florida, the State
with the second largest number of endangered species, there is re-
markable State-Federal-private cooperation. In the San Francisco
Bay Delta, with which some Members of the task force are famil-
iar, it was getting four Federal agencies to work together on a
water and endangered species set of issues that caused the State,
then the agricultural users, the municipal water users and the en-
vironmental community all to come together.

I think where we have been able to do some work, but not
enough under the existing law, is in involving State and local gov-
ernments more. We can do a lot under the existing Act. The best

example is the NCCP process in southern California. The Fish and
Wildlife Service basically delegated to counties and local govern-
ments, working with developers and environmentalists, the oppor-
tunity to do multi-species plans, basically planning the habitat and
open space for the area — much of the area between L.A. and San
Diego — for the next hundred years, and the promises of the plan
is minted — the Federal Government walks away and takes the En-
dangered Species Act away.

We can do more to involve the States and local governments,
though; and we have proposed a series of changes to the Act that
would do that, including allowing States to develop their own con-
servation plans in exchange for removing the effect of listings of in-
dividual species.

Where the Act has perhaps not worked as well is with respect
to private land, and we have basically adopted and are recommend-
ing some changes to the law to help us further two strategies for
private landowners. For small private landowners, we are propos-
ing exemptions, in most cases, from the Act. We will have in the
Federal Register, I hope within the next week or 10 days, a pro-
posal for a generic exemption for most species for residential home-
owners and those that want to develop five acres or less.

Sometimes, for some species, we can do more. In the Pacific
Northwest, we proposed an 80-acre exemption for timber land-
owners.

For large landowners, we have basically pioneered the idea of
using voluntary multi-species agreements with timber companies
in the States of Oregon and Washington. We have done the same
thing in the Southeast with almost a dozen timber companies, try-
ing to basically substitute for a species by species regulatory act a
multi-species planning process that provides real certainty.

And, finally, I think we made sure that science is brought to the
Act with peer review of listings. The National Academy report I
think affirms that the Act is based on good science. That doesn't
mean, however, that some additional changes can't be made in
areas like the petition process.

Overall, Mr. Chairman, we think that the Act is working. We
think it has been successful. We think it needs fixes. We think we
are making some of those fixes under existing law, and we would
like to join with you in a solid reform program to make some
changes in the Act that respond to the problems we can't fix under
existing law.

Let's make this Act work better for species but certainly better
for the regulated public as well. Thank you.

Mr. POMBO. Thank you.

[The statement of Mr. Frampton may be found at end of hear-
ing.]

Mr. POMBO. Mr. Schmitten.

STATEMENT OF HOLLAND SCHMITTEN, DIRECTOR, NATIONAL
MARINE FISHERIES SERVICE, U.S. DEPARTMENT OF COM-
MERCE

Mr. Schmitten. Thank you very much, Mr. Chairman and Mem-
bers of the task force. I am Holland Schmitten, the Assistant Ad-
ministrator for Fisheries, and I do very much appreciate this oppor-

tunity to present our views on the reauthorization of the Endan-
gered Species Act (ESA) and our implementation of that Act. I have
submitted written testimony, but in deference to the many other
speakers, I would just simply like to summarize that testimony.

On a personal note, I have been directly involved in the natural
resources management of our country for the last 24 years. That
includes timber, fish and wildUfe. The last 15 years I have served
as the State Director of Fisheries, the Northwest Regional Director
of National Marine Fisheries Service and, the past year-and-a-half,
as the Assistant Administrator. I have had firsthand knowledge
and experience in the implementation of the Endangered Species
Act.

As a resource manager, I would like to state that the Endan-
gered Species Act is our only hope of preserving a rich national bio-
logical heritage. In my discussions with other resource managers
from around the world, the ESA is often used as a benchmark for
species preservation that other countries aspire to.

But there have been many lessons learned in the past 22 years
since the passage of the Act, and it is appropriate that the Admin-
istration and Congress look for ways to improve the effectiveness
for both species and mankind.

The Act designates both the Secretaries of the Interior and Com-
merce or their designees, the U.S. Fish and Wildlife Service and
National Marine Fisheries Service, for implementing the Act. The
agencies have strived to be consistent in their administration of the
Act. Just over a year ago we issued a joint policy on key aspects
of the listing, consultation and recovery. But there also are some
unique differences between our agencies in their administration of
the ESA.

The National Marine Fisheries Service has jurisdiction for all
marine fishes, most marine mammals — the exceptions are polar
bear, sea otters, manatees and walrus — and, through a 1976 MOU,
the management of anadromous stocks. Those are fish that live
their life in salt water and spawn in freshwater, the most famous
being salmon and steelhead. The management for those species
rest with the National Marine Fisheries Service.

On the other side. Fish and Wildlife has responsibility for plants,
terrestrial species and freshwater fish, plus the four marine mam-
mals that I noted. A uniqueness — we have jurisdiction of sea tur-
tles in their marine environment, and Fish and Wildlife has juris-
diction on the nesting beaches.

Of the 855 species that are currently listed, my agency manages
29. We had 30 until last year, and we have delisted the gray whale.
Further, our species, with the exception of Northwest salmon and
shortnose sturgeon, are located in the marine environments, the
oceans, and generally have minimum impact on private lands.

Even though we manage such a small fraction of the total listed
species, many of these species are extremely significant culturally,
aesthetically, biologically and even economically. They are species
that man can closely identify with and often create intense public
interest, and they include seven species of whales, nine other ma-
rine mammals, six sea turtles, four salmon stocks and three other
fish species..

Since most of my ESA experience deals with Northwest listed
salmon, let me just describe those listings, how we implemented
the Act and the lessons learned, because I think from that we can
all shape how we can improve this Act.

In 1985, 16 years after the passage of the Act, we received the
first listing for anadromous stock. That was to list the Sacramento
River winter run chinook. That was followed in 1990 with four peti-
tions to list salmon stocks in the Snake and Columbia River. And,
since 1992, we have received petitions to list in excess of well over
100 salmon and steelhead stocks.

And accustomed to dealing in a collaborative fashion with States
and tribes on fisheries management issues, we applied the same
philosophy to the management of the petitioned species. Even
though the act doesn't require that, frankly, the States and Indian
tribes have much of the necessary scientific information on which
decisions to list are based upon.

Once we concluded that process, we selected a seven-member —
and that is both geographically and scientifically — diverse, outside-
the-agency recovery team. The previous norm had been to use in-
side-agency scientists.

Further, they pioneered new areas in that the team, once it com-
pleted its work, submitted that draft for scientific peer review be-
fore submitting it to the agency.

One of the big difficulties that we have confronted has been the
management of section 7 consultations for Federal projects in Fed-
eral contracts. The Act specifies that that is a process among and
between Federal action agencies and the Federal reviewing agen-
cies. This simply left out our partners, our States and our tribes,
in those deliberations.

Let me just indicate some of the important lessons learned. One,
the Act is not proactive. It is designed to react when species are
approaching extinction, which is the definition of endangered. I
heard it recently described that we are simply ambulance chasers
with the patient being critically or terminally ill. The Act needs to
be restructured to focus on avoiding listings.

Further, the ESA should be more user friendly. Also, the Act
should encourage the use of outside scientists. It should encourage
partnering with States, Indian tribes and anyone that has vital in-
formation for making the scientific determination.

Finally, there has been little incentive for private landowners to
vest in the process. Plus, there is little flexibility for the very small
landowners. Most of these issues were addressed in Secretary
Babbitt's and Brown's 10-point plan, which has been referenced al-
ready; and we will submit a copy of that plan to the Members. The
changes are significant. They go to the heart of legitimate problems
associated with the Act.

Mr. Chairman, we acknowledge that the Act is in need of modi-
fication and change, but that the essence and the philosophy of the
original drafters of the Act to preserve species and their habitat to
enrich our lives and the lives of future generations will never
change.

I look very much forward to working with you and the commit-
tee. Thank you.

Mr. POMBO. Thank you.

[The statement of Mr. Schmitten may be found at end of hear-
ing.]
Mr. POMBO. Mr. linger.

STATEMENT OF DAVED G. UNGER, ASSOCIATE CfflEF, FOREST
SERVICE, U.S. DEPARTMENT OF AGRICULTURE

Mr. Unger. Thank you, Mr. Chairman.

I would like to ask that our full statement be entered in the
record, and I would like to summarize it briefly for you at this
time.

I would like to begin by mentioning that Secretary Glickman, as
you know, has asked the Forest Service to develop a review of laws,
regulations and policies affecting public land management — among
them, the Endangered Species Act — and identify the interrelation-
ships and potential conflicts, and opportunities for efficiencies and
has asked us to deliver that report to him on the 1st of June. We
think that that could be some helpful information in this process.

The mission of the Forest Service, of course, is to do the best job
we can, under the laws, to manage the 191 million acres of forests
and rangelands and grasslands in our jurisdiction and to provide
uses and values in products and services, while maintaining and
managing the resources themselves and protecting them, including
threatened and endangered species. And I would note that about
one-third of all listed threatened and endangered species do occur
on national forest lands.

We have helped to protect and improve habitat for many threat-
ened and endangered species, helped to bring back the bald eagle
and peregrine falcon, grizzly bear, eastern timber wolf, light-footed
ferret, Puerto Rican parrot, and the greenback cutthroat trout. But
there are costs. There are direct costs. Research and protection ac-
tivities of the Forest Service amount to about $40 million a year
in this regard; and, of course, there can be significant reductions
in outputs from the forests, such as timber in certain cases.

Early on, we concluded that the best way to conserve threatened
and endangered species is a proactive policy to protect and con-
serve their habitats in order to prevent listing. We do this by iden-
tif5dng sensitive species. We have identified 2,300 of them, and
they have been designated as such. It takes time and effort, but it
avoids the much more substantial costs and impacts if listing oc-
curs later on.

In order to carry out this preventive strategy, we work with
many partners, including the agencies at this table and the others
that have been mentioned earlier.

We have developed an agreement with the key Federal agencies.
One product of that agreement was the signing last Friday of a
conservation agreement with the Forest Service, the Park Service,
the Fish and Wildlife Service, the Arizona Game and Fish Commis-
sion, Utah Division of Wildlife and the White Mountain Apache
Tribe to protect the Arizona Willow.

Consultation in the endangered species process is probably the
most contentious aspect, but about 85 percent of our projects in the
Forest Service either don't affect listed species or are determined,
through informal consultation, not likely to adversely affect. When
we do go to formal consultation, ordinarily that is completed within

the regulatory time limit of 135 days. But consultation can be un-
wieldy when new information comes into the picture, especially if
it is late in our analysis process or if a project is already under
way.

So we have been working closely with BLM and the Fish and
Wildlife Service and National Marine Fisheries Service in the past
several months to develop streamlining processes such as concur-
rent evaluations, batching similar kinds of projects together so they
can be dealt with at one time, and looking at shorter timeframes.
We think this can help minimize delays in those kinds of cases.

I would like to conclude simply by saying we are committed to
effective implementation of the law, we are working to improve
interagency coordination, and we support efforts to streamline the
act in order to meet its objectives. Thank you very much.

Mr. POMBO. Thank you.

[The statement of Mr. linger may be found at end of hearing.]

Mr. POMBO. Mr. Kourlis.

STATEMENT OF THOMAS A. KOURLIS, COMMISSIONER OF
AGRICULTURE, STATE OF COLORADO

Mr. Kourlis. Thank you very much, Mr. Chairman. If I seem
uncomfortable here making my testimony, it is because I lack the
experience on doing such a thing, but bear with me if you would.

My name is Tom Kourlis. I am Commissioner of Agriculture of
the Department of Agriculture in Colorado and Chairman of the
Endangered Species Committee for the National Association of
State Departments of Agriculture. NASDA is a nonprofit associa-
tion of public officials representing commissioners, secretaries and
directors of agriculture in the 50 States and the four U.S. terri-
tories. As chief State agricultural officials, NASDA members are
keenly aware of the importance of balancing production and natu-
ral resource conservation for their States and the Nation.

I am also a sheep and cattle rancher in Northwest Colorado, and
I am actively involved in the ranch that my father founded in 1926.
I have managed that ranch on behalf of myself and three genera-
tions for 22 years. The Kourlis ranch is located in the Axial Basin
along the Yampa River and the critical habitat for endangered spe-
cies of fish that has been designated on the reach of the river that
runs through our hay meadows.

I am here to suggest how we can improve the Endangered Spe-
cies Act and how it can be made to work for those of us in agri-
culture who are in a position to voluntarily cooperate with species
recovery and effort.

I would like to address three points which are of great impor-
tance if we are to diffuse the bitter controversy surrounding the
Endangered Species Act. These three changes in the reauthoriza-
tion will increase effectiveness to imperiled species on the ground
and will make the act more functional at the resource level. These
points are included in my written testimony, which I have recently
submitted for the record.

Let me begin with the issue of certainty. Successful efforts to re-
cover threatened and endangered species are very dependent on
the ability of non-Federal landowners to contribute something of
value. A major goal of the reauthorization should be to create vol-

untary incentive programs that encourage, rather than force, will-
ing landowner cooperation.

The National Association of State Departments of Agriculture is
one of the agricultural organizations proposing just such a vol-
untary incentive-based partnership for farmers and ranchers. We
support the concept of voluntary whole-farm natural resource man-
agement planning.

As proposed by NASDA, these whole-farm plans will provide the
technical and the financial assistance necessary for farmers and
ranchers to voluntarily enhance conservation of their resources and
provide improved wildlife habitat. Such plans will allow farmers to
act, rather than react, to species' needs. Approval and implementa-
tion of these plans would also give landowners certainty that they
would be in compliance with the provisions of the Endangered Spe-
cies Act.

We strongly encourage this task force to include compliance lan-
guage for whole-farm natural resource plans in the reauthorization
of the Endangered Species Act.

This action would be consistent with the approach taken by the
House in H.R. 961 in the Clean Water Act. During Floor consider-
ation of the water bill, the House voted 290 to 122 in favor of
whole-farm plans. The Members of this task force voted 14 to three
in favor of the plan.

In addition, we support the concept of safe-haven agreements as
another tool for increasing cooperation. Such agreements would
allow appropriate State agencies to enter into voluntary prelisting
agreements with landowners to ensure habitat conservation of can-
didate species. Those agreements would offer certainty that the co-
operators would not face additional obligations under the Endan-
gered Species Act if the candidate species or another unforeseen
species were to be listed at a later time.

Both of these concepts are very similar to the no surprises policy
and the voluntary incentives for landowners policy outlined earlier
this year by the Secretary of Interior.

The second point I would like to make is that there must be new
partnerships between Federal and State governments in imple-
menting the act. States should be given more authority so as to
balance the powerful role of the U.S. Fish and Wildlife Service. The
Service currently holds all the vetoes, all the cards; and naturally
that breeds resentment, distrust and gridlock in the implementa-
tion phases of the act. They should be given joint authority for deci-
sions surrounding listing, critical habitat designations, recovery
programs and delisting. This would greatly improve the cooperation
and the development of quality programs.

I am neither endorsing Federal primacy nor State primacy. What
I am proposing is a Federal-State partnership.

My third point is that we must not sacrifice good, workable
projects in the pursuit of perfect solutions. Those of us who have
spent our lives watching the unpredictable ways of nature know
that we often must settle for something that works, works well,
even if it is not completely perfect. We must decide when good is
good enough.

Let me ask you this question. In order to hasten recovery of an
endangered fish, should we not take fertilized eggs from endan-

gered fish that are native to the region and raise hundreds of off-
spring in captivity and release them into the critical habitat, effec-
tively jump start the recovery?

I recognize that captive breeding is subject to endless arguments
among biologists worried about preserving diverse gene pools. Cap-
tive breeding and reintroduction may not be a perfect solution.
However, it is a pretty good jump start on the recovery when com-
bined with habitat improvement, and that is something we
shouldn't overlook.

In closing, the reauthorization bill should stress voluntary co-
operation. It is clear to me that the Federal Government simply
does not have the resources to continue to force the State — those
States, tribal and local governments and private landowners into
compliance. If the act is truly to be successful, it must enlist those
landowners as active and willing partners to accomplish a higher
level of success.

Thank you very much, Mr. Chairman.

Mr. POMBO. Thank you very much for your testimony, and you
did just fme.

[The statement of Mr. Kourlis may be found at end of hearing.]

Mr. PoMBO. Mr. Frampton, first, I would like to just get a couple
of, I guess, housekeeping things out of the way.

A couple of weeks ago, when we invited the members of the ad-
ministration to testify, we submitted a list of questions to Secretary
Babbitt; and if you can ask him about that and have him submit
the answers to those questions for the record, it would be greatly
appreciated. I was hoping that we would have them before your
testimony today, but we have not received them yet, so I would ap-
preciate that.

Mr. Frampton. We are putting together the answers to those
questions, Mr. Chairman, and — which I saw I think about 10 days
ago; and we will provide them as soon as possible.

Mr. POMBO. Another matter deals with a letter that you sent to
me on March 10th of this year in response to my concerns on the
fairy shrimp listing, and you commented in the letter that the
science had been peer reviewed by several individuals, including a
scientist from the University of California and a scientist from
Stanford. I would appreciate it if you could — and I have not been
able to find this — provide the names of who did the peer review on
that — on that science.

Mr. Frampton. I will do that as well, Mr. Chairman.

Mr. POMBO. Thank you.

[The material supplied may be found at end of hearing.]

Mr. POMBO. I appreciate the tone of your testimony today, and
I think that it will help us a great deal in trying to achieve a bill
that is workable in both protecting endangered species and in deal-
ing with the public.

One of the things that concerns me is that it is — you have said
in the past, and as well as today, that a number of the changes
that heed to be made under the Endangered Species Act you feel
can be done administratively versus through legislation, and I
would agree with you that a number of changes can be done ad-
ministratively. But one of the dangers in not correcting it in the
legislation is that you are open to being sued on every time that

you try to use the flexibility that is within the act, as has been rep-
resented by a number of cases. Particularly in the Pacific North-
west, when the executive branch has tried to use the flexibility that
is in the act, they have ended up in court over it. How do you re-
spond to that?

Mr. Frampton. Mr. Chairman, we think that our administrative
and policy changes, without exception as far as I can think of, are
soundly based in science and law and will withstand any court
challenges. I am not aware of a case in which an attempt to use
that kind of flexibility has been litigated, but we certainly do sup-
port putting many of these new policies and regulations and strate-
gies into law.

For example, the issue of peer review has been an issue for
years. We now have a standard policy, three independent scientists
peer review every listing. That is a policy. We would like to see
that written in the law.

The Secretary's no surprises policy, which enables us to have a
structure for saying to local government or a private landowner, if
you do a plan that adequately accounts for the habitat needs not
only of species that are already listed but species that might be
listed, then we will not come back in 15 years or 20 years or during
the life of the plan, even if new information is discovered, and
make you spend more for those species. We would like to see that
in the law.

We would like to see a number of other things we have done to
make habitat conservation plans, multi-species plans, and some of
the things that we have done through the 4(d) rules, for example,
in southern California also written into law. So we think we are
on sound ground, but we would like to see that incorporated in the
statute, those changes.

Mr. POMBO. One of the proposals that has been put forth by the
administration is an exemption for small property owners, and I
happen to believe that that really is poor policy to establish a break
point on — ^based on the size of the property. Wouldn't it be better
to deal with the conflicts between private property owners and ESA
so that an exemption based on size of property is not necessary?

Mr. Frampton. Let me clarify what it is that we are proposing —
we are going to formally propose it in the next week or two. Under
the proposal residential homeowners, and this would take care of
85 to 90 percent of the homeowners in the country, and all land-
owners who want to develop or disturb five acres or less would or-
dinarily be exempt, in the case of most species, from the Endan-
gered Species Act.

Now, in the case of species where there was an exception, we
would change it, but the ordinary assumption would be a five-
acre — not five-acre landowner but five acres of disturbance or de-
velopment or less for a landowner, any size, one time.

If your question is, is that a somewhat arbitrary standard to
have, in general, yes, it is. But what we are aiming to do, just like
programmatic permits under the Clean Water Act, is something
that I think has proved very successful in the past. And that is,
if we are relying primarily on public land and voluntary land-
owners for large-scale habitat protection, we can let most people
out from under the Endangered Species Act. And if we can give re-

lief to 90 or 95 percent of the people or in 90 or 95 percent of the
cases without really undermining the purposes of the Act, let's do
it.

Mr. POMBO. And I understand that. I just believe that a better
public policy approach is to deal with conflicts between private
property owners and the protection of habitat in a much more
broader sense. I think you will come to the same conclusion that
small property owners have little or no impact on the overall sur-
vival of species, but I think that by taking an arbitrary number,
whether it is five, 10, 20 or 100 acres, whatever you come up with,
I think that you are — that that is just poor policy from the sense
of protection of species in general.

Mr. Frampton. Well, let me make clear that we do have — we are
already using and propose to expand a panoply of other efforts to
resolve these issues. For example, in the 10 years before this Ad-
ministration came to office, only 15 habitat conservation plans
under section 10 were completed. We have now completed 60, four
times as many as the last decade in the last two years; and we
have almost 200 under negotiation.

Those are not all voluntary agreements with large landowners,
but many or most of them are. They are with major timber compa-
nies. They are with county governments.

And if you look at southern California or Washington County,
Utah, for the desert tortoise or the agreement we signed with Plum
Creek Timber in the Montana State lands division, in the Swan
Valley or the Weyerhaeuser HCP we reached last month, we have
got those kinds of tools to deal with larger landowners as well as
small landowners. But we might as well let 90 or 95 percent of the
people, including residential homeowners, out if it is easy to do. I
don't think that that prejudices or undercuts the efforts we are
making to take a strategic approach to larger landowners.

Mr. POMBO. Unfortunately, 99 percent of the problems are with
the larger property owners; and I don't think that there is different
protections in the law based on property.

My time is expired; and, with the committee's indulgence, I
would like to recognize the full committee Chairman, Mr. Young.

Mr. Young. Thank you, Mr. Chairman. I appreciate you having
these hearings.

It is amazing what an election will do, and now the cooperation
exists that didn't exist before — not because of the administration in
place today. It is basically to implement the law.

I am one of the people, I think the last remaining person on this
committee, who voted for this act originally. It was never intended
to be implemented as it is being implemented. It has been regu-
lated, it has been changed, and that is why we are having these
hearings. And, hopefully, we can make it work.

I am one that does not support repealing the act. We are trying
to make it work. That is very, very important.

The gentleman from Colorado, I thought you had great testi-
mony. That is what this is about, this position of the government,
the big-brother government telling States, individual farmers what
they have to do or they go to jail.

It won't work. We won't tolerate it. The people won't tolerate it.
This is a partnership, supposedly, to protect the species, and you

have the case of the fish and you brought that up very clearly.
What is wrong with trying to jump start, making this work? They
say it can't be done, but you did it with the wolf, but you can't do
it with the fish. That doesn't make sense.

It is the willy-nilly application of the law that doesn't — is not
consistent. And so I do think that before we are finished we have
to make this a consistent partnership between States, private land-
holders, the government and its agencies or we are going to be in
serious, serious trouble, including the species themselves.

I have some personal experience. A father left three brothers a
piece of ground in California. One of the parts of the will was 21
acres were not to be disturbed. We have, very frankly, in this area
the last habitat as it was many, many years ago. We have taken
care of the species. And now there is a chance that the golden go-
pher snake or garter snake would be on that list, and we are being
told you can't farm around it because you might disturb the habi-
tat.

Instead of saying that, they should reward the people who took
care of the snake. That is what should happen. Instead of, if you
don't, you are going to go to jail. If you plow your field, you are
going to go to jail.

And that has been the attitude of not only this administration
but the agencies themselves. You don't have the support that I
think is necessary to keep this act in place. We have to take it and
rebuild it.

But I would like to get to a couple questions to the gentleman
from the Forest Service.

Habitat conservation areas were imposed in the Tongas. Those
areas totaled over 600,000 acres where timber harvesting was pro-
hibited. At the same time, petitions to list the Alexander archipel-
ago wolf and the goshawk were filed by the extreme environmental
groups.

Then Forest Service and Fish and Wildlife Service coordinated a
review of the petitions on the wolf and goshawk. The goshawk peti-
tion was denied. The bird was not listed. This was because there
was no evidence that the bird was threatened or endangered. In re-
ality, it was a fringe species. In fact, it has never been residing in
the Tongas.

Now, I want to ask a question. There is no evidence the species
declined, as was the case in the goshawk, and if there is not a list-
ed- species, then why should the listing process under ESA be used
as a reason to impose habitat conservation areas like those in the
Tongas? And by the way, you bring up one of the valid points.

You say you are going to work together, but the Fish and Wild-
life, Federal, said there was no listing of the wolf or the hawk. And
yet the Forest Service to this day is implementing those conserva-
tion habitat areas saying we don't care what Fish and Wildlife
says. Now, what is the justification? Where is this partnership
working with the Forest Service?

Mr. Unger. I will let Mr. Frampton respond to part of that, but,
again, by saying it is a proposal that is being commented on by the
public now to establish interim areas, and the deferral of certain
activities such as timber sales is being carried out during this pe-

riod until we determine what the final decision will be on adopting
those.

The basis, Mr. Chairman, was information that indicated that we
needed to look closely at this situation and take some preliminary
steps. And I believe that that effort to try looking at a sensitive
species before listing and avoid listing, exemplifies what I was say-
ing earlier.

Mr. Young. Because what you have done is shut down harvest-
ing in that area, period.

Mr. Unger. No.

Mr. Young. You have done that; don't tell me that. I have been
there. Don't start this argument, because I have got people out of
work. Areas that were supposed to be sold, supposed to be up for
sale and being cut today, can't be done because of your action. Not
the Fish and Wildlife. They have said publicly those species are not
endangered. But you have not come back and said, all right, they
are not endangered.

And, you know, I am really concerned about this, because there
were 6 million acres set aside just for habitat. We have done this
in this Congress. Mr. Miller helped us do this. Six million acres for
old-growth preservation, the habitat conservation, for endangered
species and species that are indigenous to the area. And now you
come along and shut down the rest of the areas because you think,
your agency, they might be, in fact, endangered, when the Fish and
Wildlife say they are not endangered.

Now, you are two Federal agencies. You are under, frankly, our
jurisdiction. And this is an example why this act has been misused.
It has put my people out of work. Thousands of jobs right now are
in jeopardy. Mills are being shut down, and very frankly, only 10
percent of the forests in the Tongas is open for logging to begin
with, because we have set it aside already.

Mr. Miller helps me do this, 7.5 million acres we set aside. So
I am saying, Mr. Chairman, all due respect, my time is up, you bet-
ter get your act together, because you are misusing the act. It was
never intended this way. We have documentation they are not en-
dangered, and yet my people are out of work. My time is up, Mr.
Chairman.

Mr. POMBO. Mr. Williams.

Mr. Williams. Thank you. Mr. Frampton, Secretary, let me ask
you not so much about the Endangered Species Act in its general-
ities, but with regard to a current specific effort underway, and
that is this matter of wolves in Yellowstone, Wyoming, Idaho and
Montana. As you are no doubt aware, there was some resistance
among members of those States' delegations to the artificial reloca-
tion of the wolf

I was a little hesitant myself about artificially bringing the wolf
back. I preferred, as did some of my biologist and science friends,
to see the recovery proceed naturally. However, now it is a deal,
we have a deal. And the wolves are there. And as you know, there
are now howls in the Congress to unfund the effort.

Now, even though I was hesitant about bringing the wolf in
there, it seems to me doubly unwise to strip the money. I worry
about the potential for no management of these wolves. They come
under a certain section of the Endangered Species Act, which does

not entirely treat them as an endangered species, with the under-
standing that they will be managed.

If we pull the money, they can't be managed. It seems to me,
that begins to endanger the ranchers and the others who live in
the area. Can you visit with us some about the ramifications of
pulling the money for that deal?

Mr. Frampton. I would be delighted to. Director of the Fish and
Wildlife Service, MoUie Beattie, is also here today. We have had
several long discussions with Senator Bums about this in the last
week, and I think we are getting very close to convincing him to
change his view on this subject. Not quite there yet, but almost.

Very briefly, we think wolf reintroduction is the fastest, cheapest
way, to get this animal off the endangered species list, it is de-
signed to get the wolf off the list in 2002. Save 15, 20, 25 years
in getting this animal off the list, and will do it less expensively
than the total cost over time of natural reintroduction.

Now, you may disagree, one may disagree with that goal, but
most people who support the Act, and almost everybody who is a
critic of the Act thinks we should be moving to get species off the
list. This does it faster and cheaper. That is number one.

Number two, there has probably been more public input and pub-
lic involvement in the process of the wolf reintroduction effort than
almost any natural resource issue in the last 25 years. And there
is strong national and regional public support for it.

Third, the reintroduction part of this is designed to be more sen-
sitive to rancher and grazing interests, more flexible, and protects
those interests better than if we had natural introduction. And fi-
nally, there is no real evidence that there is a threat here to ranch-
ing interests from wolf reintroduction. In fact, a Federal judge
leaned over backwards this spring to give the Farm Bureaus of the
three States an opportunity to present evidence and found not that
the evidence was slim or not enough to win their case, but that
they presented no evidence that there was a real threat to the in-
dustry.

We have experience with this in Montana where there are about
the same number of wolves as we are hoping to establish in Idaho
and Yellowstone. Last year, cattle losses in Montana were $40 mil-
lion, from all sources; $1,000 from wolves, all compensated.

Last year in Montana, more than a thousand times as many
sheep died from ovine ineptitude as died from wolves. That is a
sheep that falls over and can't get back up. The fact of the matter
is that we are going to spend about $300,000 a year for three or
four years, about $1,200,000 for the reintroduction part of this.

The overall monitoring and so forth is more expensive, about $6
million in seven years. Most of this money will go to the three
States. It is not being spent by the Fish and Wildlife Service, but
by the three States. For that $1,200,000, we are going to advance
this, getting this animal off the endangered species list by 10 or 20
years. It is a good investment and to interrupt the investment and
throw out the program would cost us a lot of money, would set back
the effort, and would be worse for the ranching and farming and
grazing industry, because then you have natural introduction.

Mr. Williams. I thank you. Those — ^you have answered the ques-
tion very well. Those have been my concerns as well. I want to say,

again, I was hesitant about bringing the wolf in. I want to note,
finally, and it may be unusual for a Westerner to recall this, but
you mentioned, Mr. Frampton, in total we will spend about $7 mil-
lion on the wolf. We will spend — we spend five times that amount
every year of the Federal taxpayers' dollars in helping ranchers
eradicate coyotes and other pests, if W3 call them pests. And so we
ought to worry about each Federal dollar, because they all spend
the same.

Now, let me finally say, and I, like the Chairman — ^Mr. Chair-
man, I recognize the red light is on — but I want to say to the three
Federal officials, maybe our neighbor from Colorado as well, and
this may be a timely — my statement may be timely, because it
comes when you are hearing a lot on the national news about the
ambivalence of the West toward the Federal Government, and
maybe even the resistance of the West toward the Federal Govern-
ment, the Endangered Species Act and regulations in general.

I can't speak for all of the West. Neither can anyone else, be-
cause no one understands it. The West has always been a bit of a
myth. The West is kind of a national event in America. But I think
I understand Montana, and I want the three Federal officials here
to know what I think I know for certain about Montana.

Montanans have a deep visceral demand that the place be pro-
tected. We want the great roving wild animals to be there for our
great great grandchildren to see. We understand that there will be
some discomfort in trying to protect Montana, and we are willing
to put up with an appropriate amount of that discomfort in order
that Montana will remain what America has named us.

You know, our slogan for ourselves is "Big Sky." America adopted
a different slogan, the "Last Best Place." And let me conclude by
saying, when Montanans repeat that, when we repeat that Mon-
tana is the last best place, we don't say it with pride. We say it
with sadness.

Thank you, Mr. Chairman.

Mr. POMBO. Thank you. I already warned you guys that when
the Speaker got here I was going to let him go, so we have been
joined by the Speaker of the House, Newt Gingrich. You guys can
just stay there, just scoot over a little bit. He doesn't take a lot of
room.

Welcome to the Endangered Species Act Task Force hearing.
And, Mr. Gingrich, you may begin.

STATEMENT OF HON. NEWT GINGRICH, SPEAKER, U.S. HOUSE
OF REPRESENTATIVES

Mr. Gingrich. Thank you, Mr. Chairman. Let me say I am very
grateful and I apologize to the witnesses for showing up and speak-
ing briefly, then I will get out of your hair. I just believe that what
you are beginning with these hearings and what you have begun
with your field hearings is so important to the country's future,
that I wanted to come by and indicate a general framework of
where I hope you and the Members on both sides of the aisle will
go as you develop this and as you think this through and as we
move forwards to Floor action.

As you know, we have been working together and I want to
thank the Chairman for meetings he has come to and several din-

ners we have had and opportunities to engage, and I also want to
thank the Chairman of the full committee for the kind of approach
he has made to this.

I used to teach environmental studies. I am very deeply commit-
ted to our having a strong and an effective environmental policy.
I come out of a background of the Theodore Roosevelt wing of the
party.

President Roosevelt, Theodore Roosevelt said, in 1909, I quote,
"The function of our government is to ensure to all its citizens now
and here after their rights to life, liberty and the pursuit of happi-
ness." If we of this generation destroy the resources from which our
children would otherwise derive their livelihood, we reduce the ca-
pacity of our land to support a population, and so either degrade
the standard of living or deprive the coming generations of their
right to life on this continent.

I think the balance implied by Theodore Roosevelt, the Gifford
Pinchot approach to conservation is very important. On the one
front, you have legitimate property rights and legitimate economic
interests. On the other front, you have a need for a level of
biodiversity and a level of concern for the biological system that is
also, I think, paramount. And the question is, how can we work to-
gether?

If you were to go back and look at the hopes of the people who
helped pass the original Endangered Species Act, and that includes
the Chairman of the full committee, I think their vision of where
we would get to doesn't fit the bureaucracy and some of the
micromanagement that we have ended up with, and doesn't fit
some of the misallocation of source resources, and frankly, some of
the bad science.

On the other hand, I must say, and I wanted to come to register
this, I have the deepest concern and I have been pretty consistent
in my support of property rights. I understand the concern, for ex-
ample, that not just Westerners, but rural Americans from most of
the country have about a Federal Government that at times is too
indifferent and too willing to run over their rights and their con-
cerns.

On the other hand, I have a deep concern for the biological diver-
sity of the planet. My hope would be, and I want to just suggest
three things and then I will get out of your hair, my hope would
be that we are at the very beginning of a dialog; that it is totally
legitimate in the context of the last decade that the loudest voices
for reform are those who feel that their economic interests and
their property rights have been run over, sometimes for the most
trivial of reasons or by the most insensitive of bureaucracies. And
I am sympathetic to that.

On the other hand, we also have to recognize that there are enor-
mous interests that we have as human beings in maintaining bio-
logical diversity and that the truth is we don't even — we have only
scratched the surface. And I emphasize this, this is not just about
large vertebrates.

I have worked — my dear friend, Terry Maple, is here from the
Atlanta zoo. We have worked on rhinoceros and we have worked
on elephant and other conservation. But this is also about the fungi
and the various things which produce the medicine in the future.

And if you went through a hst of the things we have gotten out
of the biological system, out of the biosphere, that have revolution-
ized human health, just to take one sector, it is astonishing how
much we have gotten and how little we know.

From what I have seen so far of the new report in which a very
distinguished group of scientists make the point, and this is the
first of my three suggestions, that endangered, species, per se,
isn't — may be the wrong slogan, may be the right slogan, but the
wrong focus.

Maybe we should seriously consider redefining the act; that in a
very real sense it ought to be the Biological Diversity Act, because
you can both overfocus on a specific species, and not understand
what is happening around you, and you can also misallocate.

If your choice is, and I want to emphasize here, and I would say
this to all of my friends in the environmental movement, there has
to be some element of rationalism about economic investment. And
if our choice is a biologically diverse area that is in effect very im-
portant to support, versus a single species by itself, we may con-
clude let's invest the resources here, because we don't have infinite
resources.

So my first point will be I think we want to rethink the focus
of the act away from a species-by-species static model toward a bio-
logically sophisticated model. My second suggestion, frankly, is that
once the act has been introduced and once we see what happens
in the Senate, that maybe during the August break we find a way
to take off ranchers and timber and biologists and environmental
activists, and literally spend a week working through the various
permutations of how it would work, including frankly, and I don't
say this in any sense of surface, just childish gimmickry, asking
the biologists to play the role of the rancher and the rancher to
play the role of the conservationist, and getting people to walk a
little distance in each other's shoes, and trying to be practical
about where we are going.

I will just close with this comment. I am very committed to
bringing through the House a bill which is economically rational,
biologically correct, and respects the property rights of individuals.
And this is a very tough, very high standard. And it is going to
take a lot of work this year to get there.

I think Chairman Pombo has gotten us off to a good start. I ap-
preciate the openness with which he has dealt with various biolo-
gists and scientists that he and I have met with. I think we have
got to make sure that everybody is in the room and everybody has
a chance to think this thing through. And I came to pledge my sup-
port to this committee, to this subcommittee, as it undertakes what
I think is a very, very important project. I thank you.

Mr. Pombo. Thank you very much, Newt, for being here, and the
support you have given to the committee. I know that this is prob-
ably one of the most controversial issues that we will take up as
a new Congress, because it is an emotional issue on both ends of
the spectrum. It is a controversial issue on both ends of the spec-
trum.

I appreciate your pledge to work with us in the protection of en-
dsmgered species and the protection of people's private property
rights. I think that that is key to making a bill that has worked.

And I know I have told you this before, but no act that we come
up with will ever work unless the people that are out there in the
real world support it. And that is one of the keys to making the
Endangered Species Act work. And I appreciate you being here.
Thank you.

Mr. Gingrich. Thank you. Thank you very much.

Mr. POMBO. Thank the panel for rejoining us. And, again, I
apologize for the interruption in your testimony answering ques-
tions.

Next is Mr. Gilchrest.

Mr. Gilchrest. Thank you, Mr. Chairman.

I told the Chairman of the full committee, we all should have
clapped for Newt on that speech. But the Chairman says we don't
allow that.

Mr. Young. Only for birthdays.

Mr. Gilchrest. Only for birthdays. The gentleman from Mon-
tana left, and I wanted to make a comment about "big sky" country
and how they feel in a visceral way concerning the beauty of their
State, so when they talk about the last best place, they do it with
a sense of sadness. And I wanted to tell him that we feel that way
about the Eastern Shore of Maryland, and some places in Mary-
land. And we are under more pressure than Montana, given the ge-
ographic location of the Eastern Shore of Maryland. So there is a
lot of places in the country where people have a visceral sense of
its beauty and its heritage and they want to protect it for future
generations.

I would like to ask Mr. Unger and Mr. Frampton if they might,
because I have three questions and only five minutes, to quickly re-
spond to Mr. Young's question about the habitat in the Tongas Na-
tional Forest, where the Fish and Wildlife Service said a particular
species was not endangered and the Forest Service is going
through a plan to see whether or not they need to preserve more
habitat as a result of the suspected endangerment of a particular
species.

Mr. Unger.

Mr. Unger. Yes, let me begin by referring to my opening state-
ment in which I said that we believe that in the long run the best
policy is a proactive policy that avoids listing, that prevents situa-
tions that lead to listing, because when a species is listed, the im-
pact on the resource, the impacts on the economy, the impact on
getting the job done, become much larger.

We initiated a process to look at this. This occurred before the
decision was made not to list. We proposed some interim guide-
lines. We are in the process now of getting public comment pre-
paratory to making a final decision.

In the meantime, this action has taken place by the Fish and
Wildlife Service and Mr. Young certainly is right that there have
been deferments of timber sales, for example, in this period. But
no final decision is made on the imposition yet of the interim guide-
lines.

Mr. Gilchrest. Mr. Frampton.

Mr. Frampton. Congressman Gilchrest and Chairman Young, I
think we are trying to work together to avoid precisely the kind of
train wreck that occurred in the Pacific Northwest.

My understanding of the situation with the goshawk is not that
it is not endangered, but there is simply not enough scientific infor-
mation right now to be confident about its status. There are some
very serious concerns.

One of the criteria for proposing listing is whether other con-
servation measures are being taken to keep a species off the list.
And this is a situation that arises elsewhere in the country. And
what we are trying to do, we the Administration, by having depart-
ments and agencies work together in these situations, is, as Mr.
Unger said, to encourage proactive measures by the land manage-
ment agency or the operating agency so that we don't reach the
point of listing; or even if listing is justified, where we don't have
to trigger the Endangered Species Act because we let the Agency
or the State or private landowners undertake conservation activi-
ties. That is our goal in this case. I realize that the Chairman may
not agree with the outcome, but that is our goal.

Mr. GiLCHREST. I will yield to the gentleman.

Mr. Young. Will the gentleman yield? Again though, your own
agency says they are not endangered, they are off the list. That
agency says we are going to keep them on the list, until we finally
have scientific research. And I am saying in the meantime you
have got people out of work.

And secondly, may I suggest — ^give him some more time, Mr.
Chairman — is we set aside 7.5 million acres for old growth preser-
vation and habitat. That has not been looked at. You are going to
the last areas that can be harvested. So in de facto you are taking
the rest of it and saying, oh, no, we are looking for habitat.

In the meantime, we have got two years, people are shut down,
people are out of work. That is not fair. You misuse the act. And
I know, Mr. Chairman, give him an extra minute.

Mr. GiLCHREST. Thank you. I would like to follow up on this a
little bit further, but I would like to ask Mr. Schmitten a question
from NMFS. And I guess I have another minute here.

Mr. POMBO. Go ahead, won't stop you.

Mr. GiLCHREST. Thank you. There has been a lot of discussion
about certain species of salmon becoming extinct for a variety of
reasons, and I would assume, correct me if I am wrong, some of
the reasons are habitat loss. And a lot of people say that there is
still a lot of salmon out in the Pacific Northwest.

It may not be the same number of species, but there is still a lot
of salmon. And my question is, why do you need more than one
species of salmon? And are subspecies important at all in the whole
scheme of biodiversity and the quality of life for any species? Are
subspecies important? Why do you need more than a few species
of salmon?

Mr. Schmitten. Thank you, Mr. Gilchrest.

First, yes, in many parts of the Northwest, especially in Chair-
man Young's area, there are a lot of salmon. Alaska has had six
consecutive record runs. But why do you need subspecies of salm-
on?

Salmon are important culturally, diversity, just as the Speaker
mentioned. For instance, the Snake River salmon are unique in
many ways. They are worth saving in my eyes. The sockeye, the

furthest running sockeye in the world, 878 miles, they spawn at
the highest elevation. They go the furthest south in the country.

If you were to homogenize or have just a single species, it would
be very subject to environmental catastrophes, man-made catas-
trophes, and you would lose the entire species. If you keep
biodiversity, that is less likely to happen.

Mr. Frampton. Congressman Gilchrest, if I could just respond to
that for a moment, I think the National Academy panel, whose re-
port was issued yesterday, looked very hard at the issue of whether
the Act should continue to focus on, and the importance of, sub-
species and distinct populations, and the role that they play in con-
tinuing to have the genetic diversity that preserves the long-term
health of the entire species. The way I read this report, last night
at least, is that it is a rather strong endorsement of the approach
that the National Marine Fisheries Service has taken to so-called
evolutionary significant unit, or evolutionary unit, a concept that
the panel recommended actually be expanded along the lines that
the Speaker just suggested, to try to focus more on biodiversity and
less on individual species or subspecies.

Mr. Gilchrest. Thank you very much.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Miller.

Mr. Miller. Thank you, Mr. Chairman. Thank the panel very
much for your testimony.

Mr. Frampton, we thank you very, very much for your work out
in California to help us sort out some of these difficult habitat spe-
cies-related problems in terms of our State's future and its eco-
nomic future.

Let me ask you a question, and I — I don't take a back seat to
anyone in the support of this legislation. But it seems to me that
this legislation is subjected to a huge number of anecdotal stories
about its implementation. And I have almost as many as any other
Member of Congress, and we have all been besieged with them.
And some of them turn out to be sort of true and not true and what
have you, but there seems to be a core around those, and that real-
ly is about some sense of uniformity or consistency or exactly what
the rules are or are not.

And it seems to — ^you know, the Secretary as part of HCA is the
no surprise policy. It seems to me that very often landowners, de-
velopers, in my area, it would be mainly developers, housing devel-
opers, are constantly surprised by what the rules are going to be
and that the rules seem to change throughout the entire engage-
ment in dealing both, you know, with wetlands and/or species, that
this is a constantly evolving — the dynamics are never quite less
than fluid in terms of people who have to make decisions about
time and time is money and that all sort of flows back into the con-
gressional offices.

And you have mentioned in your testimony what you are trying
to do to bring more uniformity, more consistency to this, but I real-
ly don't get a sense that we are there yet. And I don't know what
our changing the law can do to help that, but I would also like to
know what exactly the administration's views are on that.

Mr. Frampton. Well, we have taken a number of steps. Con-
gressman Miller, both to try to improve national uniformity, but

also to give more predictability when a species is listed. Our policy
is when we list, we identify those private landowner activities that
clearly will not perhaps get in harm's way under the Act, that we
identify those.

I would be the first to admit that there have been problems in
the past. I think that the real question to this is to have a program
that involves State and local government as well as private land-
owners, and that involves the people who have to live with the con-
sequences of the plan in developing the plan.

Let me give you an example of how not to do it and how to do
it. In the last Administration, the famous Stephens kangaroo rat
was listed in Riverside County, and a lot of subdivision and devel-
opment came to a halt, in part because people did not know exactly
what they could do and what they could not do.

The rat was even blamed for people's houses burning down. It
turns out not to have been the case, but the uncertainty about
these issues added to that set of perceived problems. And this is
not after the election, but two years ago, when Secretary Babbitt
made a decision to — we made a decision to — list the gnatcatcher in
San Diego and Orange Counties. We published a special rule under
the Endangered Species Act, which basically created an interim re-
gime allowing a certain amount of development to occur, setting
the ground rules, and deferring to State and local and county gov-
ernments to work out a plan that would give clear allocations for
developers and for protection, and a lot of certainty over a long pe-
riod of time.

It seems to me those are two different paradigms. We can do bet-
ter with giving people advance notice about what they can do and
not do, but the better solution is to get State and local government
involved in a plan that gives real certainty.

Mr. Miller. I guess that is welcome. I guess my concern is
maybe more specific, and that is, and I am running out of time. Let
me just put it out here.

We can talk about it during the course of this bill, but, you know,
on the ground, when you are seeking a permit, you are seeking to
do something, there is an informal regime and protocol that takes
place. And very often, what I think happens, is there is a gradual-
ism that moves into the regiilation of the use of that land or how
the development plan is going to be carried out, what have you.
And very often it is not based on an endangered or threatened or
candidate species. It is based upon concerns that agencies may or
may not have for a species.

And all of a sudden you find yourself, you have got to make some
major decisions about the financing of your project, your go date,
the weather, the lining up of your crews, and you find yourself in
a position where you have got to give up a hundred acres because
it is much cheaper to give up the land than to continue this discus-
sion about concerns. And the concerns aren't based in, you know,
scientific evidence as of that date or an3rthing else than that, but
you simply are now economically put into the situation.

And a hundred acres where I come from is worth a lot of money,
but you have decided we will comply. And in some instances, you
know, we have Fish and Wildlife that says this isn't a problem or
State agencies that say this isn't a problem. It is somewhat analo-

gous to what Mr. Young said. And now the Corps says, yes, but you
are not going to get that permit unless we do something about that
species.

Last time I looked, that wasn't their business, but when you are
looking for the permit and you are — ^you know, you have got your
future Bank of America or Wells Fargo, your negotiating positions
are greatly diminished. And I think that is what concerns many of
us, certainly in California, where we are still a high growth State.
And very often, that then translates into higher cost housing,
longer commute distances and a lot of other things that we are con-
cerned about, when, in fact, the hard scientific evidence that we
can argue about in terms of threatened and endangered and is sim-
ply not present. I don't want to take up the committee's time.

Mr. Frampton. I would just say that the multispecies habitat
plan involving local government and the State, as well as private
landowners, which is what is going on in San Diego and Orange
Counties, is designed to prevent that from happening. Because
what the plans do with the involvement of private landowners, is
to look not only at species that are now the subject of State or Fed-
eral regulation, but those which might become the subject of State
and Federal regulation in the future. And once the plan allocates
areas of habitat on a biodiversity basis, really a multispecies basis,
for protection, and other areas that can be developed, then you
have a very long period of certainty. You don't have a negative sit-
uation.

Guarantee is built in that somebody has plans to develop an area
15 years from now and will not, in fact, be interrupted at the last
minute. This approach is also an approach that I think received
pretty warm support from the National Academy panel, and it is
an approach which fits with the approach that the Speaker just de-
scribed.

Mr. Miller. But that approach is not being uniformly and uni-
versally applied. So in fact, what you are doing is ad hocly creating
habitat protection areas at the expense of the first person through
the door.

Mr. Frampton. Well, it is being systematically applied when we
get State and local government involved in Orange and San Diego
Counties, and in other places where we are trying to do that
through local government. It is true that this is a slow process,
that it is a model. We are pioneering it. I wish it would move fast-
er, but I think it is

Mr. Miller. I wouldn't argue with you. I expect that it is a
model that would be welcome in most areas by economic interests,
it would be welcome. But, you know, it is not in most areas.

Mr. PoMBO. The gentleman's time is expired. But I feel like let-
ting you keep going.

Mr. Miller. Well, Mr. Chairman, I mean I think, you know, we
get besieged, let me just say that. I don't want these remarks to
be interpreted, because as I said, I am a very strong supporter of
this act

Mr. PoMBO. I don't think anybody questions that.

Mr. Miller. But we live out there. When the rubber meets the
road, we find very often that it is not according to Hoyle with how
some people are treated and prices that are extracted for permits

and all of that. And I think that is what raises the anger of the
people who are sitting on this side of the dais. And we have got
to contend with that.

And I think the Speaker sort of laid out those parameters, that,
you know, whether you are an ardent — and Mr. Chairman, and I
will argue about property rights until hell freezes over, but both of
our positions have to somehow fit into the community. They have
to fit, your property rights have to fit into the community.

You can't just be a renegade in terms of your neighbors and
these protections and our obligations to protect them. That has to
fit into the community. That is all the point that I am trying to
make here.

Mr. POMBO. Well, thank you.

Mr. Cooley.

Mr. Miller. Any help I can give you, you let me know, Mr.
Chairman.

Mr. POMBO. You just keep it up, George. I gave that same speech
on the Floor last year.

Mr. Miller. I can assure you, it is not plagiarism, because I
haven't read any of your speeches.

Mr. PoMBO. No, but for the first time I feel like you are actually
listening to what we are sajdng.

Mr. Cooley.

Mr. Cooley. I don't know if I should interrupt this. We are hav-
ing too much fun. Secretary Frampton, you made some statements
in the Wall Street Journal and I would like to ask you about some
of these things. To quote what you said is a developing fee on raw
land, land in natural and seminatural condition, this, you said,
would contribute to effective endangered species protection, encour-
age— or discourage ill-considered development and return the gov-
ernment a measure of public due. This is your marketing approach,
I presume, to this problem.

Mr. Frampton. I don't — could you repeat the statement that

Mr. Cooley. Your statement in the Wall Street Journal in 1962,
is you said a — I mean 1992. 1962 — ^yes, I have got unwired here.
When I see Mr. Miller joking with our Chairman, I get a little bit
unglued here. An3rway, in 1992, you made a statement, a develop-
ment fee on raw land, land in natural or seminatural condition, is,
you said, would contribute to the effective endangered species pro-
tection, discourage ill-conceived development and return to the gov-
ernment a measure of public due. Do you take this as a marketing
approach to public land?

Mr. Frampton. A marketing approach?

Mr. Cooley. Well, can you give me some idea of what you
meant? Number one is what is a development fee on raw land?

Mr. Frampton. I don't remember the context. At that time, I
worked at the Wilderness Society. But I will say that one of the
central elements of most of the habitat conservation plans, the vol-
untary agreements that are now being developed by State and local
government, involve subdivision fees and development fees, which
are exactions which are imposed by State and local government
anyway, but which are increased or in some cases redirected to
habitat protection. That is true in Washington County, Utah, in
Southern California, and in a number of other places. Like Texas,

where these voluntary agreements are being negotiated with Fish
and Wildlife Service.

Mr. COOLEY. Well, we are talking about natural or seminatural
conditions. You suggested all development is ill-considered in your
view, any development?

Mr. Frampton. No, I think the statement that you read to me,
which I don't recall the context, but I think it probably was a state-
ment about how one goes about structuring both development and
habitat protection. It is a method that has been used for decades
by State and local government to do precisely that in connection
with the subdivision of land that is in natural state.

Mr. CoOLEY. So that is where you say that the public is due
some type of a fee for development of this particular parcel?

Mr. Frampton. I think I suggested that is one way to spread the
cost of the impacts on the public from subdivision. Obviously, many
or most State and local governments in this country agree with
that.

Mr. CooLEY. When you say impact on, on what? On the subdivi-
sions, is that what I heard you say?

Mr. Frampton. Impact of subdivision on natural values and on
the community as a whole, in terms of sewage and traffic and air
pollution and water pollution and having that impact and all the
things that are a part of the local government planning process.

Mr. CoOLEY. But I thought we took care of that through a tax
base. I mean that is what our tax development dollars went for,
that is why we are being taxed at the local level for property taxes,
in order to comply with the necessary requirements for a civilized
society. So are you proposing additional tax, additional fee struc-
ture?

Mr. Frampton. I am just commenting on the fact that many local
governments do extract subdivision fees of one kind or another. I
believe that is correct. I don't pretend to be an expert in the fi-
nances of local government.

Mr. CoOLEY. OK. There is a

Mr. Frampton. Isn't that— is that not the case?

Mr. CoOLEY. No, that is not the case. I mean that is why we pay
taxes. What I take from your statement is that you want an addi-
tional tax for some way to offset something that is not already
being offset by the tax process that we are presently going under
at the local level.

Mr. Frampton. Well, certainly the local communities that I am
familiar with in various places around the country that are devel-
oping voluntary habitat conservation plans, or in the case of the
Southern California counties, they are developing plans that are
under State law, in a State process, use local planning processes
already in place, which include various kinds of subdivision fees
and exactions.

Mr. CoOLEY. Well, we call those building permits. We call them
sewer permits and things like that, to cover that. But I understand
from your statement, it looks like you think the Federal Govern-
ment should have an extra fee imposed upon development of prop-
erty.

Mr. Frampton. I don't know what authority the Federal Govern-
ment would have to do that. Congressman.

Mr. COOLEY. One last statement, Mr. Chairman. It is my under-
standing that the Secretary has the authority, the legal authority,
to exempt small landowners. In fact, indeed the law allows the Sec-
retary to lift every one of the ESA regulations for threatened spe-
cies.

Is the Secretary, in addressing this problem when we run into
specific areas of consideration where small landowners are going to
be some way or another considered in this prospect, such as Con-
gressman Miller suggested that in small tracts of land that some-
times the burdening process of complying with the ESA regulation
just makes the property invaluable, I mean just worth nothing?

Mr. Frampton. The Secretary has the authority to fairly broad
discretion to define the extent to which prohibitions will be, for pri-
vate land, applied, with respect to threatened species. And we have
committed and will have in the Federal Register very soon a pro-
posed regulation that in the ordinary case for a threatened species,
would exempt residential homeowners and private landowners who
want to develop 5 acres or less of their property.

We don't have the authority. The Secretary doesn't have the au-
thority under current law to exercise that kind of flexibility for en-
dangered species, but we have proposed that that sort of flexibility
be included in the reauthorization of the Act for endangered as well
as threatened species.

Mr. CoOLEY. Thank you, Mr. Chairman.

Mr. POMBO. Thank you.

Mr. Dooley.

Mr. Dooley. Thank you, Mr. Chairman. And, Secretary
Frampton, in your written testimony, I see where you reference the
peer review process that the Department is employing now for the
listing of species. If you could describe that a little bit, is that —
how is this peer — does the peer review process also allow for con-
sideration of additional information that is presented by stakehold-
ers, outside parties, or is it a determination primarily on the infor-
mation that was presented in the petitioning process?

Mr. Frampton. The peer review is a policy of having three inde-
pendent scientists look at the proposed listing package. It is over
and above all the opportunities that are provided during the com-
ment process and hearings, if there are any, to the public and to
interested parties to submit their comments and evidence, and in-
cluding their own scientific vetting or peer review.

Mr. Dooley. So then the

Mr. Frampton. It is additional body of evidence to be taken into
account in the final decision that is made by the Director of the
Fish and Wildlife Service whether or not to list.

Mr. Dooley. So again, just to clarify, is that it would — this
panel, then, is also charged with considering information that is
provided during the comment period and scientific information that
could be challenging the validity of the information that is a part
of the petition?

Mr. Frampton. Right now, I believe — it is not a panel, it is three
separate individual reviews. I would have to get back to you or ask
someone who is here with me whether that is the case. My under-
standing is that we peer review the proposed listing package.

Mr. Dooley. Does that proposed listing

92-551 - 95

Mr. POMBO. If the gentleman would yield, please ask. If you have
somebody with you that could answer that question, please ask
them.

Mr. Frampton. Sorry?

Mr. POMBO. If you have someone with you who could answer that
question, would you please — ^Rollie has got his hand up.

Mr. SCHMITTEN. Mr. Chairman, I might just cite how we ap-
proached it. And when our recovery team, which was a panel of
seven outside members, prepared their draft, prior to submitting it
to the agency they sent it out to the academic community and other
interested constituents, all scientists, for the review, and then sub-
mitted that final package to us, which we put out for public com-
ment. So it occurred prior to the agency receiving it.

Mr. Frampton. Could I ask

Mr. SCHMITTEN. There is no precedential standing of that. That
is just the way we did that.

Mr. Frampton. Could I ask MoUie Beattie to respond?

Mr. PoMBO. Please, sit up here, please.

Ms. Beattie. Excuse me for the confusion. Rollie and Mollie have
this problem all the time.

Mr. Chairman, the answer to Congressman Doole/s question is,
yes. We make listing decisions as the law requires us based on the
best available scientific information. In requesting peer review, we
submit the available scientific information, whether it be support-
ive or not supportive of the position that we are proposing. We give
the whole pile to our reviewers and ask them their opinion.

Mr. DOOLEY. So I guess, then, to put in kind of a practical con-
text, who — is somebody making a determination on what informa-
tion is then presented to the scientists doing the peer review?

Ms. Beattie. Again, Congressman, we submit the available sci-
entific information.

Mr. Dooley. So you are making a determination on what is the
scientific information that could be passed on?

Ms. Beattie. No. In our review process, we gather everything we
can find in terms of scientific information. We use that as the basis
of our decision. It is, of course, rarely dispositive. There is always
some doubt.

Mr. Dooley. So what happened in effect when Judge Sporkin
threw out the gnatcatcher, was that based on what?

Ms. Beattie. Based on a dispute over what level of scientific in-
formation. It was not the circle we drew and said, OK, you can look
at this, but not that. But we have a practice of accepting, and I am
going to use this word again, it is going to be confusing, peer re-
viewed science.

We do not do primary research, as a rule we go out and find
what has been published in the scientific journals. These scientific
journals are themselves peer reviewed, so any article submitted
has to have been OKed and found sound by a bunch of scientists.

We rely on that. The question in the gnatcatcher listing was
whether we should have asked for the raw data behind the sci-
entific reports that we were reading.

Mr. Dooley. I guess that is where — I mean I think that is a fun-
damental issue, is whether or not the validity of the raw data is
going to be subject to the peer review.

Ms. Beattie. I am not sure how we are going to come out on
that, but what the judge said is that people should have access to
the raw data if they wish to look at it. And certainly that is some-
thing we could do. In that particular case, the access was some-
what complicated by the scientists' handling of it.

Mr. DOOLEY. If I could just continue on.

Mr. POMBO. Go ahead. I interrupted you.

Mr. DoOLEY. Then if you are subscribing to a form of peer re-
view, and we can debate whether or not it is going to be as broad
in scope as some of us would like, for prospective listings, now that
the Department is currently required to review the species which
have been listed every five years, I guess, would the Department
then entertain a directive through the reform of the legislation that
those species that are presently listed should be subject to the De-
partment's new peer review standard?

Ms. Beattie. Congressman, I would have to look into the practi-
cality of that. We are talking now about almost a thousand species.

Mr. DoOLEY. But you are required every five years to review
every species that is listed now currently, right?

Ms. Beattie. Certainly, to see if there is more significant avail-
able information. If a species is listed, clearly new information is
going to be most important to us. If the species should be delisted,
if it is information pointing to a reversal of the listing process, a
delisting, a new delisting would have as much peer review as a
new listing. So I am not sure that there is a practical problem
there.

In other words, if we found information in our five-year review
that told us that the species was now recovered, or alternatively
extinct, we would be delisting. And in that process, once again,
would gather all the available scientific information and that would
go through a peer review. So there is an automatic trigger in there
that I think would satisfy the

Mr. Dooley. I guess it would just be on who is the burden
placed, should it be — ^you know, some of us would be questioning
whether or not it should not be the requirement of the Department
to demonstrate that the scientific data that went into the listing of
a species should be sound. And I think that is what is leading to
a lot of people questioning the credibility of the act, and whether
or not we should not set in place a process where that species are
listed now should be subject to the peer review, the standards that
you have established, and if they have the science that is on the
files within Fish and Wildlife or Department of Interior, so be it,
that is not a problem. But, you know, once again, to rebuild the
confidence in the act requiring that those listed species would be
subject to the same standard that you adopted now.

Ms. Beattie. Thank you. Congressman.

Mr. POMBO. Mrs. Chenoweth.

Mrs. Chenoweth. Thank you, Mr. Chairman. I am interested in
the listing process.

Mr. POMBO. If you just delay for a second.

Ms. Beattie, you can stay there. You don't have to leave.

Ms. Beattie. Thank you, I think, Mr. Chairman.

Mrs. Chenoweth. I want to direct my question to either Mr.
Frampton or Ms. Beattie. You were talking about the scientific re-

view and the scientific data that you require when listing a species.
And I want to read to you or just show you a letter from a Roxanne
Bitman.

The petition is nine lines long. And she petitions that the Fish
and Wildlife Service list the conservancy fairy shrimp, the vernal
pool fairy shrimp, the longhorn fairy shrimp, and the California
linderiella as endangered species. And this is what comes out of
your file, nine lines. And that is the scientific data. This is the rea-
son we are so frustrated.

There was no scientific research done on the listing of these four
species, and it did involve private property. So I would ask that
this is the reason that we are all asking these questions, and all
so concerned about the lack of scientific data. Now, I do want to
say that

Ms. Beattie. Congresswoman, may I respond? Would you like
me to respond to that?

Mrs. Chenoweth. Yes, I do, but I want to finish my question to
you. You did involve a Dr. Belk in the listing of these species, and
in our hearing in California, Dr. Belk admitted that the vernal pool
fairy shrimp probably shouldn't be listed, and after all in our line
of questioning, he did admit that they had survived ice ages. And
so, you know, I just encourage you so that we can work together
to look at this specifically,

Ms. Beattie. Thank you. On the issue of petitions, it is impor-
tant to distinguish between the piece of paper that has the petition
itself and what happens when we receive it. That is simply a record
of a petition coming into us. Regardless of what is presented at-
tached to the petition, and regardless of the motives of the peti-
tioner, the science that we use to explore the supposition, we will
call it, that is on the petition, that something is endangered or not,
is very thorough and equally as thorough whether it comes in with
a 32 cent stamp or comes in from a research scientist at Stanford.

We examine them, we see if they are substantive, and we pro-
ceed to gather the best available evidence. An enormous amount of
science goes behind these reviews, about a year, year-and-a-half to
two years worth of research.

The petitioners sometimes and often does not submit the science
with it. It is up to us by law to go and see if there is any substance
to this proposal. Indeed, in the last five years we have turned back
75 percent of the petitions we have received.

Mrs. Chenoweth. What I am saying is that the scientific data
that was presented was from Dr. Belk, who admitted at our hear-
ing in California that the shrimp should not be listed, and admit-
ted that it had survived ice ages. So we really did — we were there
in the field, we really did examine the files. And so this is — and
this is stopping a lot of work and harming a lot of private property
owners. But I thank you for being here.

Mrs. Chenoweth. But I thank you for being here.

Ms. Beattie. Thank you.

Mrs. Chenoweth. I have some questions for Mr, Schmitten from
the National Marine Fisheries Service.

As you know, your decisions have impacted my State greatly. I
think Mr. Frampton and I have already discussed the wolf and I
am going to let him off the hook on that one. But the listing of the

sprijig, summer and fall of the chinook and the Red Lake fish,
sockeye salmon has created a lot of concern in our area, and I know
you are very, very well aware of it.

I want to give you an example that National Marine Fisheries
Service is not working with our people in trying to expedite our
procedure, and, Mr. Chairman, I would like to ask for unanimous
consent for an extension of my time for four minutes.

In 1989, a mine went into operation, the Stibnite Mine. In 1992,
almost nine years later, the chinook salmon was listed. In 1993,
the Forest Service concluded that the mine's operation was not
likely to adversely affect the species. Now, the mine is located on
private property.

Your agency refused to accept the Forest Service's recommenda-
tion and instructed the Forest Service to reach a likely to adversely
affect determination. Now, NMFS also apparently refused to initi-
ate formal consultation until the Forest Service did that. These are
in documents that I have found.

The Stibnite Mine operation was not allowed to be part of the de-
termination but they did go ahead and contact the National Marine
Fisheries Service personnel on numerous occasions in attempts to
discuss your agency's review and evaluation of the information.
However, your agency refused to have any discussions with them.

We have been advised that it is — on a related note, they wrote
in December of 1994 that we have been advised that it is likely
that NMFS will have a draft biological opinion this week. That was
in 1994. It still isn't here.

We have also been informed NMFS will not provide the company
with a copy of the draft on the basis that NMFS considers it a
working draft, not a final draft, and that while the regulations do
allow the applicant to request a copy of a draft bill, NMFS believes
that the regulations only apply to a final draft bill.

I can tell you that this is an example of what is frustrating our
people in Idaho immensely.

Now, this company has not been able to operate all of this time.
It is losing millions of dollars. On March 16th 1995, the Forest
Service wrote a letter to your agency requesting that the response
come through in an emergency manner as provided for in 50 CFR
S402.05. That was 60 days ago and we still haven't heard from you.

Now, I bring up the issue of the Stibnite Mine because, sir, this
is happening to hundreds of our businesses, hundreds. Can we re-
ceive any more cooperation from your agency than we received in
the past?

Mr. SCHMITTEN, The latter part of the issue, let me guarantee
you, yes, you can. It is certainly my approach to work together. Our
solutions will be so much more founded if we do that, or at least
we understand each other, where we differ. I don't know the details
of the issue that you just laid out. I will certainly find out more
about it.

As for instance of how we do work. We have had over 400 con-
sultations now in the Greater Columbia Basin. Only 11 have
reached jeopardy. Of those 11, we found reasonable and prudent al-
ternatives to allow the project to continue.

So in effect, we have not shut down any projects that we have
gone through the consultation process. It troubles me the scenario

that you laid out because it is simply not my standard of working
with people and I will find out about it.

Mrs. Chenoweth. Thank you. I appreciate your personal atten-
tion to what is happening to us in the northwest.

I do want to ask you with regards to the drawdowns of water
that we are experiencing from our storage pools in order to issue
this salmon smolt to the ocean, how is it that National Marine
Fisheries Service can call on the water when the water is owned
by the State or by the permit holders?

Mr. SCHMITTEN. Representative Chenoweth, I have lived all of
my life, 49 of 51 years in the west, and I understand the very
strong feelings toward both water rights and property rights. We
have attempted to be very careful in observing the laws of the
country as we approach the recovery plan.

I understand that certainly the salmon recovery is affecting
many of your constituents, Washington State members, Oregon,
Montana constituents. We have attempted, though, to approach
this and design a recovery that no one constituency has to pay the
bill, that if everyone gives something, gives a little bit toward that
recovery, no one goes out of business, we recover the species, and
that is what we have attempted to do.

This will be the second year that the fishermen off the coast
haven't fished. Certainly your constituents in the drawdown are
suffering, but if we can get through that together, we will not shut
down businesses, close down resorts. We just simply all have to
partner in their recovery.

Mrs. Chenoweth. Mr. Schmitten, I would like to suggest that
since the State owns the water or the water right holders own the
water, that should the Federal agency want our water, then I
would suggest that you do abide by the State law and either apply
for it or work through our legislature or work through some lawful
means, but just simply to call for our water and have it issued out-
side of our State is something I hope you will soon revisit because
it is patently unlawful. Even the Supreme Court has ruled against
that kind of taking by the Federal Government.

And I would like to say in closing, Mr. Frampton, I was in River-
side County, California. I was on the land with those homeowners
who suffered and who lost their homes because of the kangaroo rat,
and to have an agency say it just didn't happen is part of the rea-
son those of us in the west are very frustrated. Your agency would
not allow for the tall grasses to be either grazed or cut and with
the horrible winds that blow down there in the dry season, the fires
were out of control.

I talked to numerous people whose cars caught on fire as they
were trying to drive out and escape through the fire. I would just
invite you personally to go out to that area and examine it because
I can tell you, sir, it did happen. Homes were lost because of the
kangaroo rat.

Thank you.

Mr. POMBO. Mr. Faleomavaega.

Mr. Faleomavaega. Thank you, Mr. Chairman. I think if I were
to catch the spirit of the hearing this afternoon, and by the way,
Mr. Chairman, I do commend you for your leadership and your ef-
forts in the past occasions that we have had hearings, field hear-

ings in other States and other jurisdictions, this being the final
hearing of the task force, I want to commend you and thank you
for this opportunity that I certainly have in serving as a member
of the task force.

But I said, if we were to catch the spirit of what we are trying
to accomplish here, I think as well stated by Chairman Young and
Mr. Miller, as well as our Speaker, Speaker Gingrich in terms of
what has happened over the years, ironically, that the Endangered
Species Act came about during the Nixon administration.

Sometimes I think we make false stereotypes that because the
President happens to be a Republican, they are anti-environ-
mentalists, and I think that is a real false perception.

But, Mr. Chairman, my observation to the fact that we have got
the Federal Government, we have got the local and State govern-
ments, we have got the private property owners, we have got the
developers, we have got the environmentalists, we have got the rec-
reational motorist, put them all together and we got quite a prob-
lem.

I was taken by Mr. Kourlis' earlier statement saying we should
develop a partnership, but I am somewhat taken aback in realizing
that it is bad enough that we have got five or six different
groupings constantly at each other's necks when here we have got
agencies within the Federal Government fighting each other, too,
and I suggest that perhaps if Mr. Young was here, we ought to get
a pair of boxing gloves and find out if the Forest Service or the
Fisheries and Wildlife will endure or serve the better part of find-
ing out exactly how we should enforce the Endangered Species Act.

And I just wanted to ask both Mr. Unger, Mr. Frampton, based
on the concerns expressed earlier by Mr. Young, if you have re-
solved your differences or is the problem because of some weakness
in the provisions of the act or is the problem just the stubbornness
of the two agencies that can't seem to work this problem out as
stated earlier by Chairman Young?

I would like your comments on that.

Mr. Frampton. Perhaps I can clarify that colloquy. Before I do
that, I would like to say that it is true that wildlife protection and
conservation, including endangered species protection, has been a
bipartisan program in the Congress and elsewhere for a quarter of
a century.

There may have been some misunderstanding about the discus-
sion we had. Chairman Young is upset because we are cooperating,
not because we are at each other's throats.

It is precisely because we are cooperating and the results of the
cooperation involve some set-aside of forest, in part to make sure
that species are not placed on the endangered species list and that
the wildlife protection aspects of forest management are taken into
account. It is because we are cooperating that he is unhappy. He
disagrees with us about the result.

This Administration has made sure that these agencies do co-
operate. We have cooperated here.

We have come to a result which we are both comfortable with
and which we think keeps species off the list. Chairman Young, we
have a disagreement with him about the desirability of that result,
but it is because we are cooperating that he is unhappy.

Mr. Faleomavaega. Mr. Unger, could you address that because
I think you were trying to respond

Mr. Unger. I agree that we are cooperating and that the discus-
sion on this subject led to some misunderstanding because we are
working together. I would say the degree of cooperation between
these agencies and others involved with public land management
is the best I have seen in many years in Washington and is improv-
ing.

I would just like to mention a footnote, and that is the Forest
Service has to meet the requirements not only of the Endangered
Species Act, but other requirements, the National Forest Manage-
ment Act included, which has regulations that require that we as-
sure the viability of fish and wildlife species within our national
forests.

Mr. Faleomavaega. Could you say that — I am sorry because of
the time — would you say that perhaps the problem lies not with
the regulators and the enforcers of the law; it comes right back to
the Congress?

Mr. Unger. Well, I don't want to say it in those terms. I do want
to say that we have multiple responsibilities that deal with fish
and wildlife species that go beyond simply the Endangered Species
Act.

Mr. Faleomavaega. Gentlemen, the train is moving and I just
wanted to ask if the administration plans to offer any proposed
amendments or any provisions to the Endangered Species Act so as
to improve — make improvements upon the act. Is there any move-
ment in the administration to do this while we are in the process
of drafting or adding or making improvements to the act as well?

Mr. Frampton. Yes. The administration put forward about three
months ago a series of proposed changes to the Act that we think
would make it work better, and take account of some of the prob-
lems and we are working on some additional possible suggestions,
but we think we have put forward and offered a common sense rea-
sonable set of reforms that would make this act work better for
both species and for the regulated public.

Mr. Faleomavaega. Just one more question, Mr. Chairman, if I
may. Just 30 seconds.

How do you determine when a fish becomes a game fish as op-
posed to other fish that qualify for commercial sales or use? Is
there someone there in the fisheries — I have a problem.

I Have a fish in my district called the wahoo. It is a member of
the tuna family, and somehow under our laws, because it is a game
fish, I cannot hack it like tuna.

Why is this?

Mr. Schmitten. Generally those rules and regulations are pro-
mulgated by the States. States manage within 3 miles; 3 to 200
miles fall within the jurisdiction of the Department of Commerce,
National Marine Fisheries Service. Therein, if it is a species that
we manage, those determinations are made by the councils.

These are federally mandated councils under the Magnuson Act.
We usually have a list of affected parties knowledgeable and inter-
ested, fishermen and others, that make the call.

Mr. Faleomavaega. I am going to call you, Mr. Schmitten. I am
sorry. My time is over but I am going to call you on this.

Mr. SCHMITTEN. We will follow up on this.

Mr. POMBO, Thank you.

Mr. Hastings.

Mr. Hastings. Thank you, Mr. Chairman.

The testimony here today and the questions from all of the mem-
bers, at least from my perspective, have tended to zero in on spe-
cific problems, and this is going to be the last hearing of the task
force. I would like to ask some larger questions in general and I
would like to direct them, to Mr. Schmitten.

You were one of those that are charged with managing the En-
dangered Species Act. Let me just ask you point blank.

In your opinion, is the act working?

Mr. Schmitten. I don't know anyone that says that the Act
should not be improved or modified. Congress and the Administra-
tion are coming forward with proposals at the same time. I hope
what we base our decisions on is what we have profited over the
last 22 years of experience.

It seems, as the Speaker identified today, that it is a careful bal-
ancing between species' needs and human needs, and we need to
become more efficient. We need to have better science in making
those decisions and we need to be more collaborative. We need to
include other people in those processes. I think that if we will focus
our modifications in those areas, we will have a much better En-
dangered Species Act.

Mr. Hastings. Well, let me follow up on that because you men-
tion that the administration is coming forth with some amend-
ments to the act. Obviously in the testimony we have gathered a
lot of information. If you were a benevolent dictator, I don't want
to bestow that on you, but if you were, what is the single most im-
portant change, amendment that you would make to this act?

Mr. Schmitten. That is difficult, but let me give you my feeling
of that. I think that the Act needs to be retooled to focus on pre-
venting listings rather than reacting after we have listed species.
Many times we have reacted at a time and in that species life that
there may not even be a chance to recover. Four Snake River sock-
eye salmon, three of which were males and one female.

We need to be much more proactive, and the other thing we need
to do is allow the States a bigger role in the entire process, from
listing to consultation to recovery, and we can do that I think by
funding — in the Section 6 process, funding the States to be a full
party.

Mr. Hastings. That is not happening now?

Mr. Schmitten. That is not happening now. We have the tool
within the Act. Simply it is not being funded to give the States a
more paramount position in decisionmaking.

Mr. Hastings. Is a proactive part part of the amendments that
are being offered by the administration?

Mr. Schmitten. Yes. You will see that we are encouraging the
use of habitat conservation plans. Fish and Wildlife should be com-
plimented for the work they are doing currently.

We are catching up and attempting to do the same thing, but not
only post-listing. I would like to see more prelisting where simply
we can work with the States or an independent party and say, we

have a plan which, if we implement, there is no need to list the
species.

Mr. Hastings. One of the things that I heard — this issue be-
came— the Endangered Species Act became a very big issue in my
campaign last time. In fact, it came so far that there was a sugges-
tion that two dams be strongly considered to be torn down on the
Columbia River because of the Endangered Species Act.

That obviously leads to a little bit of problem with my constitu-
ents. Nobody, I think, knowingly — and we have heard that testi-
mony here, even from the Chairman — nobody here knowingly
wants to see a species be in danger. We don't want to be respon-
sible for that, but the question still is that I keep getting asked,
and I think a lot of others are asked, is how much is enough? How
do we have some certainty that there won't be a cost down the line
that we will not be able to react to?

When I go home and say, we haven't been to the Endangered
Species Act, what sort of certainty would you put into that so there
is not a threat down the line? We talk about a five — Mr. Frampton
talked about a five acre threshold. But just talking in general,
what sort of certainty can we have?

Mr. SCHMITTEN. Let me answer first and put your constituents
at rest. We have never proposed, suggested, or conceived shutting
down, eliminating one of the main stem Columbia-Snake River
dams. Those are billion dollar facilities that contribute to the life-
blood of the economy of the northwest. Certainly we expect better
passage. We expect modifications of those facilities, but to scare
people to think that we may suggest removing them simply we will
not and never have done.

What certainty? That is exactly what landowners need to know.
And I think that we as Federal managers have to say, if we enter
into a partnership with a landowner, we enter into a conservation
plan, our end of that deal is to provide that certainty that we
would not anticipate, as long as the viability of the plan is working,
additional requirements on that landowner.

In fact, if we can forecast other species' needs in that plan, we
would not even anticipate other listings.

Mr. Hastings, I want to ask a real quick question. You men-
tioned a State partnership with the Federal Government. I know
that some public utility districts in my district are doing some
somewhat unique things with the salmon.

Would you envision or would you look favorably upon States opt-
ing out of the ESA if they had a plan that in your judgment was
superior to the Federal plan?

Mr. SCHMITTEN. Absolutely. In fact, that is the purpose of Sec-
tion 6, that if the States or private sector can put forward a con-
servation plan that is acceptable to the two action agencies, yes,
that there is no need to list, and I think that is the bottom line
question.

Mr. Hastings. Mr. Frampton, would you answer that question?

Mr. Frampton, Yes, that is correct with respect to the existing
law, and to some extent, we have structured situations in which we
have delegated to the States the authority to take over the admin-
istration of a recovery plan or the equivalent, but the Administra-
tion has also proposed that the Act specifically be amended to allow

individual States, even where a species may cover four or five
States, to come up with a State-wide plan for one or more species.
If that plan is the equivalent of the kinds of protections that we
would be looking for under the Endangered Species Act, then the
effect of the listing would actually be suspended for that particular
State.

So we can do some of that now, but we are proposing that the
law be amended to specify how that would be done.

Mr. Hastings. That is part of the amendments that are coming
down?

Mr. Frampton. Yes, it is.

Mr. PoMBO. If the gentleman would yield to me for a second.

Mr. Hastings, I don't have any time, but I would be happy to.

Mr. POMBO. Yes, Well, I am the one with the gavel so — and I just
want to comment on something you said. A lot of times, you guys
throw up your hands when he makes a statement like tearing
down dams and you throw up your hands and say: I don't know
where that rumor ever started, we would never do that. And the
Secretary of the Interior was quoted as saying — and I am para-
phrasing because I don't have the quote in front of me — something
to the effect that he wanted to be the first secretary that oversaw
the destruction of dams.

So when his constituents — ^when someone from one of the envi-
ronmental groups out there or something says something about
tearing down the dams that his constituents depend on, you can
see how those get tied together,

Mr. Frampton. The Secretary was misquoted. He was referring
to two dams, the Elwa Klines dam, which we were directed by the
Congress to study for demolition. They are unauthorized dams in
a national park,

Mr, PoMBO, I realize that he was not talking about the specific
dams that Mr, Hastings is talking about, but you can understand
how his 600,000 constituents get a little bit nervous when they see
a quote like that and then they start talking about tearing down
his dams, and there is a relationship between the two,

Mr, Hastings, Would the Chairman yield for a moment?

Mr, PoMBO. Yes.

Mr. Hastings. The chronology of that is not exactly as you say
it, and I will cite that as of the first part of August, there was a —
it came from Fish and Wildlife to FERCA— to FERCA I should say,
regarding specifically the Priest Rapids Dam and the Wanapum
Dam. Now, this is the first part of August, and they suggested in
the ESA for reauthorization under FERC that they strongly consid-
ered removing both these dams because of ESA. That was the first
part of August.

It was not until the end of September that the Secretary at Jack-
son Hole suggested that he would like to be the first Secretary to
tear down a major dam. Now, I would suggest to you the chrono-
logical time of that, when I would consider Wanapum Dam and
Priest Rapid Dam to be two major dams, and about five weeks
later the suggestion of the Secretary that he would like to be the
first one to see a major dam removed. And I will tell you this. If
you compare Priest Rapids and Wanapum with Elwa Dam, there
is no comparison as to the size.

And when you say one of them is major, Elwa doesn't even stand
up to either one of those two dams. So I would suggest to you there
is some chronological difference there of opinion and frankly, I
asked the Secretary that specifically at a caucus meeting here. He
brushed it aside as it was just politics as usual, but I will suggest
to you that is not at all the case that those along the — in my dis-
trict felt during the campaign last time.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Thomberry.

Mr. Thornberry. Thank you, Mr. Chairman. I want to focus just
a second on a little broader aspect of what you were just talking
about, and that is the current system of heavy handed regulation
really puts fear in people and so you get the incentive that is only
half jokingly referred to as, you know, shoot them, bury them and
forget it or some variation thereof, and where the incentive is to
not find some sort of species on your land because it is only going
to cause you trouble if you do.

As a matter of fact, the former State Director of the U.S. Fish
and Wildlife Service in my State of Texas has said that the incen-
tives are wrong here. If you have a rare metal on your property,
the value goes up. If you have a rare bird, its value disappears, and
it is exactly that situation that I think presents the sort of fear sit-
uation that you have because people are scared about government
coming in and taking over their land or knocking down dams or
whatever, and on the other side of that, I think the only solution
is voluntary, top incentives to get government working with people
rather than against people.

Now, I notice in the administration's 10 principles for a new Fed-
eral endangered species, one of those is create incentives for land-
owners to conserve species. I guess my concern is, from your stand-
point, is that the centerpiece or is that something out there on the
fringes?

Are we going to have to, in your view, continue to rely primarily
on regulation, the Federal Government coming in and telling folks
what they can and cannot do, or can we move to a system that re-
lies primarily on voluntary incentives and only in highly unusual
cases revert to the heavy hand of regulation.

Secretary Frampton, what is your view on that?

Mr. Frampton. Well, let me try to answer the two or three ques-
tions that I think you posed.

To begin with, you are right, that there is an aspect, has been
an aspect of the Endangered Species Act, that creates a perverse
incentive to destrov habitat, and we are seeing that in the Pacific
Northwest where there is concern about private landowners cutting
private forestland before it gets to be old growth or has the struc-
ture to support owls for fear that it will attract owls, and before,
a landowner would want to do that.

So both in the Pacific Northwest and in the Southeast, what we
have done is begun to create these safe harbor programs to reverse
that perverse incentive and to create a positive incentive, to say to
landowners, if you sustain or enhance habitat and you attract en-
dangered species, you will be held harmless for eventually driving
them away or harming them if you cut your forestland or develop
the land. Because in the meantime, the species will be benefited

and we will end up being better off in the long run. So that is a
particular disincentive that we are trying to eliminate.

The larger question you ask is, do we want to rely more on incen-
tives and less on regulation? The answer to that is clearly yes, and
I will give you one particular example, and that is in the Pacific
Northwest where we are negotiating multispecies habitat conserva-
tion plans, voluntary agreements with timber companies and with
the States of Oregon and Washington.

There, the incentive for them is the opportunity to develop a for-
est management plan that may last 50 years and not only satisfies
future Endangered Species Act requirements, the regulation that
might come at them in the future, but also State forest practices
and the requirements of other environmental requirements and
buys 50 years of certainty in the timber program and also buys
them the opportunity to be good stewards of their land and have
a timber program that they design.

So there is a big incentive there for the companies, and from the
species' point of view or the regulators' point of view, what we are
getting is a lot more protection for the ecosystem than we would
be getting through regulation.

Now, to conclude, though, in the sense of developing incentive
programs that will cost money, you know, to the extent that we can
provide incentive programs that reward through Federal dollars af-
firmative actions to protect species or habitat, we have got big
problems because there aren't any Federal dollars. So as much as
we would like to develop and encourage the legislation of additional
incentives programs, we face some really significant funding bar-
riers to that and that is a major problem here.

Mr. Thornberry. I just wanted — I think it is very important to
recognize that you will never be — ^you and the Congress will never
be able to hire enough enforcers to be as successful as we could be
if we had landowners working with the government rather than
against the government.

Let me ask one other question in the brief time I have left. You
talked a little bit earlier about creating exceptions for small land-
owners, those people who had residential houses of five acres or
less. I want to just weigh in on this.

That may be fine for the folks in suburban California, but that
doesn't help the cotton farmer out there who tries to make a living
off 160 acres in west Texas, and the idea that there are some spe-
cial property rights for a small tract owner that do not go to a larg-
er tract owner I think is a dangerous precedent, and obviously com-
ing from my district, to have a greater burden on someone who is
out there trying to earn his living solely off the land and not ad-
dress his problem I think is going to be a big mistake, and so when
you are looking at granting exceptions just for the residential home
owner, I hope you don't forget about the folks who are out there
trying to earn their living off the land as well.

I think that is something we have got to address when we re-
write this bill. Thank you.

Mr. POMBO. Mr. Metcalf

Mr. Metcalf. Thank you very much, Mr. Chairman.

My question, first question will be for Raleigh Schmitten, and
Raleigh and I were products of the Washington State legislature
and it is good to have you here back in the other Washington, too.

The question I have, this is an issue that I brought up at the
ESA hearing in Vancouver, Washington, and we are deeply con-
cerned about the rehabilitation of the Columbia River salmon and
a lot has been said today about the sound science. Sound science
is absolutely critical. And my question is a little complex so I will
go over this.

The National Marine Fisheries Service has considered three dif-
ferent plans for the salmon recovery on the Columbia River and the
Snake River systems. Two of these, the Crisp model and the Sam
model are available for public review, all parts of them, all the cali-
brations, everything. The third leg of this, the flush model, has not,
to my knowledge, been available to the public. That is, how they
arrived, the details, and this is very important.

While the information from the conclusions of the flush model
are available, and that says the conclusions, the data used for cali-
bration doesn't seem to be available to the general public. In light
of the fact that NMFS has considered the data from the flush
model, that has been sort of chosen as the one we are going to use
to rehabilitate the Columbia River, then I get real nervous about
public policy for recovery efforts on the Columbia and Snake in
light of the fact that the other two models are reviewed in the proc-
ess, available in their entirety to the general public, and I would
like to have you assure me that we can get all — every bit of the
details from the flush model.

Mr. Schmitten. Representative Metcalf, I have to dust some cob-
webs off to remember all the models, but I do remember this.
About three years ago when there was a controversy of the models
and the different outputs and inputs, we funded a workshop to
bring in the community to put all three models on the table to look
into the bowels of those model to understand exactly what the in-
puts and the differences so people could evaluate how it determines
or how it derives the recovery.

I am not sure the differences between those three. I can assure
you that I will go back and I will make — I will ask if the flush
model has had adequate review. If not, I will assure you it will. If
so, I will provide that information to you.

Mr. Metcalf. OK. I really appreciate that because I met with a
professor at the Fisheries Department at the University of Wash-
ington who basically, we talked about the various models and he
said he had been trying for months to get that and it was not being
released, something about the tribes, that they had a part of it and
they weren't going to release it or something. I don't know. But if
you can assure me that

Mr. Schmitten. It potentially could be proprietary if it is held
by the tribes.

Mr. Metcalf. What was that?

Mr. Schmitten. I said it potentially could be proprietary if held
by the tribes. If I recall, the flush model is the State agency's and
tribe's model and if the State agencies are involved, it is a public
document.

Mr, Metcalf. ok. That is the point I want to be very clear, be-
cause for my — as my opinion, if it was used as the model to develop
public policy, it is public and we will get it. Is that — ^you have an
agreement on that?

Mr. SCHMITTEN. Yes.

Mr. Metcalf. We will get the details? Thank you very much be-
cause we have got a lot of people sort of worrying about this. I real-
ly appreciate that, Raleigh, and keep in touch with us on it as soon
as you get information on that with my office.

Another question, this is mainly for I think Mr. Frampton. How
many northern spotted owls presently live in the Pacific northwest?
Do you have any idea?

Mr. Frampton. I got asked that question yesterday.

Mr. Metcalf. OK, good.

Mr. Frampton. In another committee and offered to provide the
number for the record, and I would do so again. I would just point
out that the whole conservation strategy for the spotted owl is not
really based on numbers. It is based on creating these areas.

We expect that the numbers will continue to go down over the
next 10 to 15 years, would continue to go down even if another
stick of timber weren't sold in the Pacific northwest off of public
lands.

Strategy is based on creating a system of reserves that eventu-
ally brings those numbers back up to a stable base, about 15 or
20 — ^beginning 15 or 20 years from now. But I will supply the best
numbers we have for the record.

Mr. Metcalf. OK, and also how many owls would you say are
necessary to ensure the survival of the species? Frankly, it is my
opinion that — and everything indicates that it was just poor
science, very poor scientific data which led to the spotted owl fiasco
in the Pacific northwest.

I have information that people have provided to me, there are
lots and lots of owls. They didn't find them in the deep forests
where they went looking for them because they took deep forests
to look in. The fact is they don't live much in the deep forest.

They live more in the other areas, and that there are a large
number of owls in that area, and I would like to have — let's get
some real solid scientific information so that we cannot have these
stories going around in different ways.

Thank you very much.

Mr. POMBO. Thank you. Mr. Frampton, you state in your written
testimony that some of the ESA horror stories were clearly exag-
gerated or false, and I would like you to provide for the record
which of the stories that you feel are clearly exaggerated or false,
and if that was testimony that we heard on this task force in pre-
vious hearings that you feel is exaggerated or false, if you could
provide that for us for the record.

Mr. Frampton. I would be glad to do that.

Mr. PoMBO. Also, any member that wishes to submit further
questions to this panel can provide them to the panel in writing
and they — and I would request that the witnesses answer those for
the record and for the individual members that ask questions as
soon as possible.

Thank you. Thank you very much for your testimony and for an-
swering the questions.

Mr. Frampton. Thank you very much, Mr. Chairman, for your
consideration.

Mr. POMBO. I would like to call up our second panel. Dr. Daniel
Simberloff, Dr. Patrick Kangas, Dr. Terry Maple, Dr. Nicholas
Wheeler, Dr. Dave Cameron, and Dennis Avery. Thank you very
much. I appreciate your patience in dealing with the task force.

I would like to recognize Dr. Simberloff to begin his testimony
and, again, I remind the witnesses that your entire statements will
be included in the record, and if you would summarize them to con-
clude within five minutes, I would greatly appreciate it.

Thank you. Doctor, you may begin. Welcome

STATEMENT OF DANIEL SIMBERLOFF, FLORIDA STATE
UNIVERSITY

Mr. Simberloff. Thank you, Mr. Chairman, and also other
members of the committee for letting me speak to you briefly about
scientific issues relating to endangered species. The problem is, in
a nutshell, primarily habitat. Over 700 species are listed, and for
about two-thirds of those, the reason why they are imperiled is
habitat destruction.

It is a crisis. Even though species have always gone extinct in
the past, they are doing so at much greater rates now. One exam-
ple that makes this point is that about 500 species of plants and
animals have gone extinct in the United States in the past 400
years. All but one of those are believed to have gone extinct be-
cause of human actions.

Just in the last three centuries, worldwide, we have lost 60 spe-
cies of mammals and about 120 species of birds, and these are
groups that we know very well; it is not just a problem of under-
developed countries. In the United States, we have lost, in the last
100 years, 18 bird species, 17 freshwater fish species, and over 200
species of plants, and presently, about a third of all our plant spe-
cies are imperiled and about 22 percent of our vertebrates.

What can science do to help deal with this problem? Conserva-
tion science has developed very rapidly, and I think that conserva-
tion scientists are now very good at determining the causes of
endangerment and extinction. I have occasionally heard people
complain that conservation scientists are the reason for the extinc-
tion crisis on the grounds that they don't know what to do to save
endangered species. This really isn't true. Conservation biologists
generally do know how to save endangered species, but the task
that is assigned to us isn't exactly that. It is not only how to save
species, but at the same time to preserve some level of human ac-
tivity.

So the considerations are usually primarily economic, sociologi-
cal, et cetera, not only scientific, and we are asked to figure out
how to solve them very quickly, often in a matter of a few months.
I submit that, if physicians were given just a few months to under-
stand what was causing a disease and figure out a cure and were
forced to administer the absolute minimum of a pharmaceutical
that might give a fair chance of survival; then their failure rate

would be very, very high, but that would not mean that medicine
is a poor science.

I think that recent conservation biology teaches five main lessons
for dealing with endangered species. The first one is the very one
that is emphasized in the National Research Council report, which
was released yesterday, and that is the critical role of habitat.

Because habitat destruction is the main cause of species loss, in
order to save species, we must protect their habitat. Fortunately,
many endangered species have the same or very similar habitats,
so large groups of species can be maintained together in the same
habitat. Sufficient habitat conservation is going to require lots of
partnerships among Federal, State, and private landowners. Only
about 50 percent of all currently listed species occur on Federal
lands.

Again, I must emphasize that because many endangered species
exist in clusters, the same habitat can serve multiple duty for
many of them.

The second point that I would like to make is the phenomenon
I call the "death from a thousand cuts" phenomenon, that is, the
often-deadly cumulative impact of many small losses of habitat, no
one of which would seem to be enough to push a species irrevocably
onto the path of extinction, but that all together are lethal.

For example, some species consist of groups of populations with
occasional movement between them. Occasionally a population goes
extinct and then it is replenished by movement from other popu-
lations. As we lose populations, we reach a situation in which there
is no more movement, and the whole species collapses.

Captive breeding will not help too much in this situation. It is
much too expensive. In addition, as species are captive bred, they
become unadapted to life in the wilds. Already, some species can
exist only in zoos and parks. Some of these take enormous amounts
of land, like the European bison, a very good example.

Augmenting natural populations has its own threat, because the
genes that are brought in by interbreeding the individuals that are
captive with the wild ones often destroy the adaptations of the wild
population and often produce the kinds of species we don't want.
This has happened to the coho salmon, for example, which has
turned into a wimpy fish because of continued interbreeding with
hatchery-reared stocks.

The fourth point is that we must consider population trends, not
just sizes. It is well recognized that most of the listed species were
listed when the populations sizes were already very small; the NRC
report elaborates on this point. In some instances populations that
seemed quite substantial have seemed to go extinct before we real-
ly noticed there was a problem.

All it takes for species to be among the "living dead" is an aver-
age death rate slightly higher than the average birth rate, and we
wouldn't see this pattern for a very long time. So we have to do
demographic studies and this is going to take a while, especially for
long-lived species.

My last point is that there are often crucial interactions among
species such that on a or several species require another species for
continued existence We often learn about these cases inadvert-

ently, when one species disappears and we have major problems
with the entire ecosystem or with other species.

We do know how to conduct the kind of research that will reveal
what these relationships are. There is a long tradition of meticu-
lous experimental work on this kind of problem, but it takes a good
while, cannot be done very quickly, and is expensive.

So to sum up, I believe that conservation science can offer a lot
in designing endangered-species legislation and regulation that can
help maintain endangered species, but it is not going to give cheap,
quick answers.

Thank you very much for your patience.

[The statement of Mr. Simberloff may be found at end of hear-
ing.]

Mr. POMBO. Thank you. Dr. Kangas.

STATEMENT OF PATRICK KANGAS, NATURAL RESOURCE
MANAGEMENT PROGRAM, UNIVERSITY OF MARYLAND

Mr. Kangas. I appreciate the opportunity, Mr. Chairman, to
present some comments about the Endangered Species Act. I am
an ecologist and I have conducted research on a variety of aspects
of ecosystems.

I do not have any direct experience with the Endangered Species
Act, but I have worked on modeling extinctions in the tropics and
I have presented a brief document that tries to receipt that experi-
ence to the Endangered Species Act.

Basically, the tropics are where the highest level of biodiversity
exists on the planet and a very critical area that ecologists need
to be concerned about. I became interested in the issue of the ex-
tinction rate in the tropics and discovered that it is a very difficult
process to quantify and the best science that we have been able to
do on a large scale has involved models, and this is a rather impre-
cise approach but is necessary in the tropics where biodiversity is
very high.

I think one of the interesting things that has come about in the
tropics is the very high estimates that have arisen and this has
alarmed me. I think that to some extent there has been an exag-
geration of extinction rates in the tropics, and while there is not
very good scientific data to really say what these extinction rates
are, I worry that if we do exaggerate these extinction rates, that
that "may affect the way that we are able to do conservation, and
I think the critical aspect is that our conservation resources are
limited and we need to find the best ways to use those limited re-
sources, and so I am worried about this issue of exaggeration.

In terms of what is taking place in the United States, I think we
are in a much better situation. I don't think that extinction rates
have been exaggerated in this country.

I think we have a much better handle on our own biodiversity,
although that is still very much limited in terms of its science also,
but we are much better off than the tropics in general and I think
that we can perhaps reflect on the tropical issues and reach a few
conclusions, one of which, because we have more information, I feel
that we are obliged to use that in making the best policy that is
possible. We don't have that luxury in the tropics.

Also, I think from the tropics, because of the very high diversity,
I think it is very difficult to work at conservation at the individual
species level, at which the Endangered Species Act works. I think
in the tropics, we will be forced more and more, and have been, to
deal with larger scale levels of hierarchy of biodiversity and I think
that is one of the directions that perhaps the Endangered Species
Act should go. And I suggest the landscape level as a very impor-
tant level of biodiversity.

And finally, I think that one of the directions of the science about
tropical biodiversity that we see is shifting away from trying to es-
timate extinctions, because that is very difficult and also perhaps
not the best way to do conservation, and an increasing interest in
sustainable development, and I think this is a very exciting con-
servation approach.

In particular, we try in sustainable development to get away
from the idea of environment versus the economy, and I think the
comment that was made earlier about under the Endangered Spe-
cies Act, if you find a rare species, it makes the value of your land
go down, that is just exactly the opposite of what sustainable devel-
opment tries to do.

In this approach, we try to show the value of the biodiversity and
work with communities to exploit that value through various kinds
of industries that might market nontimber resources and
ecotourism and other approaches. So I think there are perhaps a
few things we can learn from the tropics to improve the Endan-
gered Species Act and I am pleased from the earlier panel to hear
that many of those things are taking place.

Thank you.

[The statement of Mr. Kangas may be found at end of hearing.]

Mr. POMBO. Thank you. Dr. Maple.

STATEMENT OF DR. TERRY L. MAPLE, ZOO ATLA^^^A

Mr. Maple. I am truly grateful for the opportunity to discuss the
Endangered Species Act today and the reasons that I support its
reauthorization. For 20 years I have been a college professor teach-
ing courses in environmental psychology and animal behavior to
both undergraduates and graduate students.

I have taught on the west, where I was raised, at the University
of the Pacific and the University of California, Davis, and in the
south at Emery University and Georgia Tech. For the past decade,
I have been employed as the chief executive of Zoo Atlanta.

But I spent a fair amount of time as an ivory tower theoretician.
My recent experience required that I meet a payroll, balance a
budget, plan strategically, set priorities, recruit and manage talent,
market a product and make hard business decisions daily. In my
wildlife travels I have enjoyed pristine wilderness and I have suf-
fered within the most degraded and dehumanized landscapes. The
contrast is instructive.

More than ever, we need to vigorously protect our world heritage
of wildlife ecosystems. Zoos and aquariums are institutions that
represent the interests of wildlife and the people who value and
enjoy it. I manage one of the world's leading zoos, an enterprise
whose employees work every day to actively share the joy and the
wonder of wildlife.

Nearly a million people will visit Zoo Atlanta this year, while
40,000 households are paid members in our local support group to
Friends of Zoo Atlanta. Our nonprofit corporation is comprised of
115 full-time staff, more than a thousand trained volunteers, and
150 seasonal employees, with an operating budget which exceeds
$9 million.

Zoo Atlanta is a cultural institution in the business of managing,
propagating, exhibiting, and conserving wildlife in zoos, parks and
reserves. We aim to educate, inspire and provide entertainment
and recreation for our visitors.

Zoo Atlanta is also acknowledged as one of America's most suc-
cessful public-private partnerships. The zoo receives no operating
subsidies from local or regional governments and a corporate fund-
raising campaign led by Georgia Pacific chief executive A.D. Pete
Corell has raised nearly $10 million this year. We are business
minded, market driven, mainstream conservationists and we have
significant clout in our community.

I offer this background to demonstrate that a corporate orienta-
tion is not incompatible with the protection of wildlife and wildlife
ecosystems. Our visitors and our corporate donors consistently sup-
port our programs and our values.

They are partners in our continuing efforts to educate our com-
munity about the importance of biodiversity and the permanence of
extinction. We work to ensure that our children and grandchildren
will be able to witness beluga whales, giant pandas, mountain go-
rillas, elephants, salamanders and other living creatures in a State
of nature.

We cannot be satisfied to preserve a few specimens in our zoos.
We must preserve healthy populations of such creatures in their
range countries. It would be a monumental tragedy if zoos and
aquariums were to become the last refuge for endangered species.
And we cannot let this happen.

We must help to save gorillas in central Africa, whales through-
out their aquatic range, pandas in China, and elephants in Africa
and Asia. We must also save our local animals in Georgia, the
manatees, the wood storks, the indigo snakes and the like.

Zoo animals can be regarded as effective ambassadors for these
wild living kin. We are driven to save them for their own sake, but
we do it also because our community demands it. America's Endan-
gered Species Act is an important tool in promoting a conservation
ethic.

It has been argued recently that we can relax our standards of
protection because many species now can be propagated in captive
settings. I am here to report that zoo and aquarium directors are
the experts on much of captive propagation, and we have concluded
that captive breeding is not a panacea for the protection of endan-
gered species.

It is certainly true that zoos have mightily contributed to saving
the American bison and the California condor, to name a few. But
many other species have proved far more difficult to breed in the
zoo.

More than 170 accredited zoos and aquariums in America do not
have sufficient space or financial resources to manage multitudes
of endangered wildlife. The critical list is simply too long, and our

technology, too primitive. In the nearly 1,000 organized zoos of the
world, we estimate that only 1,000 to 2,000 healthy, managed pop-
ulations of endangered species could be accommodated in the avail-
able space.

We will continue to study endangered small populations, to re-
fine and improve our technology for captive propagation, but we
must also preserve natural populations and habitat.

We also recognize that reintroduction of captive-bred wildlife has
proved far more challenging than we expected, and it may be gen-
erations before habitat can be sufficiently rehabilitated to accept
the offspring of rescued wildlife.

We should not make our stand in zoos. Instead, our first priority
must be the preservation of wildlife ecosystems. No zoo can protect
and nurture mountain gorillas as effectively as the Karasoke in
Rwanda. In this part of the world, turmoil surrounds this national
park, threatening its survival and the creatures within. But it is
precisely within this vulnerable ecosystem that our commitment to
protection must be confirmed. There are only 650 mountain gorillas
left in the entire world. None of them reside in captivity.

In some cases, captive breeding is helpful, but it is by no means
our first priority. The California condor reminds us that this ani-
mal cannot be separated from its habitat. We have experience in
reintroducing wildlife, like peregrine falcons, like more land croco-
diles. It is a challenging process, and we have a long way to go.

In operating zoos and aquariums in this country, we have
learned that the public wants to live in a natural world, a world
abundant with a diversity of wildlife and ecosystems that support
it. We have learned this by studying our customers, the 120 million
Americans who visit zoos and aquariums annually. It is the mis-
sion of zoos and aquariums to contribute to public education, con-
servation, science and recreation. As zoo and aquarium profes-
sionals, we strongly agree with the preamble of the Endangered
Species Act, which recognizes that endangered wildlife and plants
are of esthetic, ecological, educational, historical, recreational and
scientific value to the Nation and its people.

The esteemed conservation biologist, E.O. Wilson, has classified
our natural resources as biological wealth. His words are compel-
ling. Native species are a part of our heritage. They are venerable
almost beyond imagining, present on this land thousands to mil-
lions of years before even the first Native American arrived. The
average life-span of a species and its descendents, before humanity,
was 1 million to 10 million years.

Each species of animal, plant and microorganism is a master-
piece, assembled by vast numbers of genetic mutations, tested by
natural selection, and fitted to a particular niche in the environ-
ment. Its genes are a library of priceless genetic and ecological in-
formation, available to us at no greater price than the effort to
keep the species alive.

Today, as we contemplate reauthorization of the Endangered
Species Act, it may be useful to consider the experiences of one of
America's greatest conservationists, mentioned earlier by Speaker
Gingrich. I am speaking of Teddy Roosevelt. In his acclaimed biog-
raphy of Roosevelt, Edmund Morris wrote, for the first time you re-
alize the true plight of the native American quadrupeds, fleeing

ever westward in ever smaller numbers from men like himself. By
1887, the ravages were plain to see. Roosevelt was now in his 29th
year and the father of a small son. If only for young Ted's sake,
you must do something to preserve the great game animals from
extinction.

Fortunately, Roosevelt was a man of action. His legislative record
at the State and national level is a monument to his commitment
to conservation.

Clearly, endangerment is not a new issue. In fact, we have al-
ready lost an estimated 1.5 percent of the 100,000 recognized spe-
cies of American wildlife since the European colonization. There is
no disagreement among the world's scientists that the pace of spe-
cies extinction is accelerating.

The protection of wildlife is never easy, but I believe that we can
develop a win-win conservation strategy that will work for wildlife
and for people. If we tinker with the Endangered Species Act, we
may be able to improve it, but we must be careful not to render
it ineffective at a time when pressure on wildlife is greater than
ever before.

Responsible Republicans and Democrats have offered construc-
tive criticism of the act as it is currently constituted. We can build
on this. We also consult our most trusted experts in wildlife, biol-
ogy and public policy. There is broad agreement that the Endan-
gered Species Act must be based on sound science, that it must be
fair and flexible.

In the American Southeast, for example, the Georgia Pacific
Company is already engaged in logging while protecting the habi-
tat of endangered woodpeckers. This demonstrates that industry
and government can successfully craft policies that will work for
wildlife and for people.

I agree with Speaker Gingrich that our policies should be driven
by incentives and not penalties. Surely we are smart enough to
make the Endangered Species Act work throughout the Nation.
Thank you.

[The statement of Mr. Maple may be found at end of hearing.]

Mr. POMBO. Thank you.

Mr. PoMBO. Dr. Wheeler.

STATEMENT OF DR. NICHOLAS WHEELER, WEYERHAEUSER

Mr. Wheeler. Thank you, Mr. Chairman, and members of the
Endangered Species Task Force. Weyerhaeuser Company appre-
ciates the opportunity to comment on our experience in growing
yew trees as a source of the anticancer agent Taxol. I would like
to summarize my written testimony comments.

I am a senior scientist with Weyerhaeuser Company, and my
background is in plant breeding and population and ecological ge-
netics. I have been the principal investigator in our Taxol project
since 1987.

Weyerhaeuser is an international forest products company whose
principal businesses are growing and harvesting trees and manu-
facturing, distributing and selling forest products. We own and
manage approximately 5.6 million acres of timberland in the Unit-
ed States, half of which, roughly, is in the Northwest and half of
which is in the Southeast and mid-South.

On April 24th, Weyerhaeuser provided written testimony to this
committee regarding potential improvements to the ESA. Today,
however, I wish to speak specifically to our experience in cultivat-
ing yew species in a nursery setting as a source of Taxol.

Although the anticancer drug Taxol is a relatively new commer-
cial product, it has literally been under development for over 30
years. Today it is considered to be — ^by clinicians, to be a very im-
portant tool in the chemotherapeutic treatment of ovarian and
breast cancers, and is showing considerable promise for treatment
of other tumor types, most of which are still under study.

Taxol was discovered in the 1960's, early in a survey of plants
that was being conducted by the National Cancer Institute's Natu-
ral Products Branch. Of the over 16,000 species ultimately that
were looked at and some nearly 114,000 extracts derived there-
from, Taxol is the only compound to have ultimately reached mar-
ket in the anticancer drug field. Development of Taxol was impeded
during those years by difficulties encountered in sourcing the
compound in the wild.

In 1991, roughly — or early 1991, the NCI awarded a cooperative
research and development agreement to Bristol-Myers Squibb,
hopefully to hasten the development of the compound. And in De-
cember of 1992, the Food and Drug Administration gave new drug
approval to Taxol.

Up until December of 1994, the only approved source of Taxol for
clinical use was from the bark of the Pacific yew. At that time,
however, Bristol-Myers Squibb received approval of a semi-syn-
thetically derived Taxol. This is Taxol derived from — through a
chemical process, converting other similar compounds also derived
from the biomass, needles and twigs of other yew species. However,
it is felt by some that there will be continued pressure on the bark
of the Pacific yew by other companies hoping to enter the generic
drug business in the future.

When Weyerhaeuser initiated our Taxol program in 1987, we rec-
ognized there were several potential alternatives to the use of na-
tive Pacific yew bark as a source of Taxol. Taxol could be derived
directly from renewable tissues or biomass of other wild-grown yew
species, or for that matter, from plants cultivated specifically for
that purpose. It could be derived semi-synthetically, as I men-
tioned, from related chemicals, also obtained from yew biomass. It
could be derived potentially from a cell culture, and of course there
is total synthesis.

Weyerhaeuser has focused its attention on nursery cultivation,
one of our core businesses and areas of expertise. The goal of our
Taxol program is to provide, through intensive cultivation of yews,
a long-term, reliable, economical supply of Taxol and other desired
taxane precursors, for semi-synthetic production of Taxol. We chose
this approach because we were concerned that a long-term harvest
of Pacific yew would be detrimental to the species' integrity, and
because cultivation offers many efficiencies for the production of
natural products.

To accomplish our goals, we initiated an aggressive research
project — program in 1987 and a production program in 1990. Our
research and production activities have focused on identifying the
best genetic materials for cultivation, identifying the best tissues to

harvest, the best time to harvest them, and what environmental
factors most influence Taxol levels in plants, developing reliable
propagation and cultivation methods and developing appropriate
harvest and processing protocols to ensure that the biomass has
high taxane content at the end of the process.

In summary, since the start of our yew Taxol program,
Weyerhaeuser has grown more than 12 million yew trees at nurs-
eries in the Pacific Northwest. These trees are harvested on a
three- to five-year rotation, not decades as it takes to grow trees
in the forest. While we possess the largest genetic collection of Pa-
cific yew in the world, virtually all of our production populations
consist of yews of other species.

We believe that intensive cultivation of selected yew genotypes
can provide a long-term, reliable and economic source of Taxol and
a means of contributing to the conservation of worldwide natural
yew populations through the use of a renewable, sustainable, cul-
tivated yew resource, managed under strict operational controls.

Weyerhaeuser's success with cultivating yew and developing al-
ternative ways to produce raw material for Taxol is but one exam-
ple of how landowners can address issues of threatened and endan-
gered species. We have been able to lend our considerable expertise
gained from decades of research and management of our private
forestlands to this important effort.

For the same reasons, the company has been able to develop and
implement solutions to concerns over wildlife habitat. We feel the
key to being able to apply these types of solutions is in having
flexibility in our management of private forestlands and to being
responsive to changes in markets and external forces and public
opinions.

Thank you.

Mr. POMBO. Thank you.

[The statement of Mr. Wheeler may be found at end of hearing.]

Mr. PoMBO. Dr. Cameron.

STATEMENT OF DAVE G. CAMERON, RETmED WILDLIFE
GENETICIST

Mr. Cameron. Thank you, Mr. Chairman. I hope my few words
will be appropriate and useful.

Like the gentleman who sat in this chair in the previous panel,
I am wearing two hats this afternoon. I am a recently retired biol-
ogy professor from Montana State University, spent much of my
life trying to examine and interpret the genetic diversity that lies
within populations of wild species in Montana, Colorado and Wyo-
ming. From time to time, the investigations of my students and col-
leagues and I have been useful to State and Federal agents who
have been attempting to interpret their mandates under the aegis
of the Endangered Species Act.

But it is not in the context of a scientist that I am here this
afternoon. I simply have a little story to tell you. In my role — or
wearing the hat, if you please — of a free enterprise commercial
rancher, third generation rancher in the last best place, Montana —
it is in this context of ranching that I ran up against what I think
are some unfortunate aspects of the Endangered Species Act that
I hope can be removed as you consider revisions of it.

The Camerons have had a long history of supporting and taking
care of wildlife, sometimes to the consternation of our neighbors
who think we overdo it. In this wildlife restoration activity that we
have done — and I hope to continue in this — I had always been con-
cerned about the absence of a fish, the Montana grayling, from a
blue ribbon trout stream that runs through our property. The
grayling is a relative of the salmon, and was in the upper Missouri
tributaries when Lewis and Clark came through. It is now quite
rare and limited to just a few tributaries.

I sought the help of my colleagues at Montana State, who — one
of them is an expert on the habitat of the Montana grayling, and
we tromped over the ranch to see if there wasn't a tributary of the
creek that might prove to be a satisfactory home for the Montana
grayling.

Much to my delight, my colleague determined that Elk Creek
was probably an appropriate habitat and stood a good chance of
supporting grayling if we took certain measures. It kind of tickled
me, because he added that this was a better habitat than any that
Ted Turner had in his 110,000 acres, and if you one-up Ted Turner,
it is not all bad.

Anyway, we set in motion, got approval, got the cooperation of
the Fish and Wildlife and Parks Departments of the State of Mon-
tana. Friends volunteered, and we felt very well about ourselves,
we were about to do a good deed. Then one day my colleague came
to me with a long face and said, Dave, I have got to tell you some-
thing; it appears that the Federal Wildlife Service is threatening
to take over management of the Montana grayling. They might list
it any day now, and you have got to think about the consequences
of this.

So I talked with — quietly, with members of the State fish and
game department, with some Federal people, and asked what the
worst-case scenario might be. And it was terrifying to me. Seven
or eight families earn their living through the salaries they earn
working for us, and I have a brother and sister who share stock
in this family corporation, and I knew I can't take the chance that
somebody is going to start telling me how to manage. So very reluc-
tantly, I withdrew my support for this project.

And I simply can ask you, ladies and gentlemen, how many
times do you think this sort of thing has been repeated throughout
the country? How often have people felt terrified by the con-
sequences of supporting some poor creature on their habitat that
they are responsible for managing? I think it is more often than
you may think. And it is just one more step to proceed from failing
to do a good deed to worrying about, hey, I have got something
here which is pretty uncommon, maybe I had better get rid of it
before somebody declares that it is an endangered species. And I
know that that has gone on.

So I request that you get the punishments out of the law and do
everything that you possibly can to provide incentives to people like
me and thousands and thousands of others who would cherish and
harbor these organisms if they weren't threatened by them.

I have a couple of recommendations that are in my written pro-
ceedings that I hope you will read. Firstly, I think that ecosystem
management is a very, very local thing. You must get local people

together to think about the compromises that must be made to
achieve certain ends. I belong to a management group that has
worked for six years. We have a complicated region with a wilder-
ness area nearby and State game ranges and private land and For-
est Service and school trust lands. And when we got through pos-
turing, we realized that we all had a common interest in a healthy
environment. We all had a common interest in biodiversity. Help
us to continue in these practices; to promote them.

My second admonition would be to please practice what you
preach. I live near Yellowstone Park. It is a grazing disaster zone.
Any range manager who looks at that shakes his head. If we were
to manage our lands as Yellowstone Park has been managed, we
would not only be broke, but we would be subject to ecoterrorism.
It is awful.

Thirdly, I would hope that you would use incentives to promote
what we all want, a healthful environment. They are out there.
They all don't have to be monetary, but at least get rid of the puni-
tive aspects of it.

And then finally, as a scientist, I want to caution you that sci-
entific communities, societies, are politically posturing. I used to
belong to the Society of Conservation Biology. A year-and-a-half
ago, they passed a resolution to the effect that they were passing
on to Interior the recommendation that some 20 to 30 million acres
of CRP land should never be grazed.

Now, that is pure politics. It has absolutely nothing to do with
science. It is antiscience; it is stupid. I think Dr. Simberloff would
agree with me. Be careful what you want to hear, because scientific
communities will tell you what you want to hear, I am afraid to
say. Just a warning.

Thank you very much.

Mr. POMBO. Thank you.

[The statement of Mr. Cameron may be found at end of hearing.]

Mr. POMBO. Mr. Avery.

STATEMENT OF DENNIS T. AVERY, THE HUDSON INSTITUTE

Mr. Avery. Thank you, Mr. Chairman. As an international food
and natural resource analyst, I appreciate the opportunity to high-
light the importance of high-yield farming and high-yield forestry
in saving world wildlife, and to note that it makes no sense to look
at wildlife preservation only as a national matter.

I fear that in that international context, the U.S. Endangered
Species Act has so far provided only a trivial and wrong-handed ap-
proach to preserving world wildlife. I am afraid that means the
problem of saving wildlife species on the planet is even broader and
more complex than today's discussion.

The Endangered Species Act, as written, has failed to restore
threatened U.S. wildlife species and has put even more pressure on
tropical species. To date, it has thus been a lose-lose proposition for
wildlife.

We don't have a choice about feeding humans in the world. If we
don't grow crops, the people of the Third World have demonstrated
that they will hunt down every wild creature for the stew pot, and
then plow their habitat for low-yielding crops. Thus, food produc-

tion does and will dominate the world's land-use decisions, in addi-
tion to occupying a third of the Earth's surface.

Because of America's unique resources for sustainably producing
food and forest products, the ESA needs to take broader account of
threatened species throughout the world. To save world wildlife di-
versity, in fact, the U.S. should probably be producing more food
and timber and exporting them to other countries.

Our own biological diversity is small by comparison to many of
the countries on the planet. While the ESA has focused heavily on
maintaining subspecies and even minor populations in America, it
has too often done so by suppressing America's ability to supply
food and forest products for which tropical forests and wildlife spe-
cies are being sacrificed elsewhere.

We have a unique endowment with prime soils and temperate
climate. When American preservation policies function to increase
the burden of logging and farming in tropical forests, they reduce
rather than enhance the chances that we will find cures for cancer
and other diseases among the wild genes in the rain forests or
other reservoirs of biodiversity.

Naturalists agree, and it has been said here today, that preserv-
ing habitat is the most critical element of preserving species. High-
yield farming is already saving an estimated 10 million square
miles of wild lands worldwide from being plowed down for food. It
takes the land, in fact, with the least biodiversity, because the best
land inherently has the fewest species on it naturally. Yet our gov-
ernment policies in this country are discouraging high-3deld farm-
ing and farm trade.

The so-called Conservation Reserve has taken more than 20 mil-
lion U.S. farming acres out of production without creating even
worthwhile wildlife habitat on them. And when a farm acre in Cali-
fornia is shut down to preserve the kangaroo rat, the final result
is probably that it plows down three lesser acres somewhere in the
tropics.

U.S. forests have been put off limits to logging without altering
world timber demand, so the timber has been provided instead
from tropical forests or from Siberian slow-growing trees that may
not be replanted. More species might have been protected by log-
ging more of America's second-growth Douglas fir or fourth-growth
longleaf pine.

I would like to emphasize — I can't be as eloquent as Dr. Cam-
eron, but I would like to emphasize that the command and control
regulatory approach has turned farmers all over this country into
fearful enemies instead of conservation allies. Farmlands have
been effectively seized as wetlands, when they could not possibly
provide critical wildlife habitat. Landowners who created attractive
wildlife habitat have often lost the use of their land.

Command and control has worked indifferently well, even in big
factories where the regulators could see what was happening. It
has almost no chance of giving us maximum conservation in the
world's remote fields, pastures and forests. Like it or not, we are
critically dependent on the enthusiastic cooperation of farmers,
ranchers and foresters to save species.

Thank you.

Mr. POMBO. Thank you.

[The statement of Mr, Avery may be found at end of hearing.]

Mr. POMBO. I don't know where to start here. I think I have
heard the entire debate on the ESA on this one panel, right here.

Dr. Simberloff, one of the proposals that has been put before me
and that a number of biologists and scientists have talked about
is, again, the need to protect biodiversity, to protect certain "hot
spots," so to speak, across the country that are biologically diverse
and to put our emphasis on protecting areas that are as biologically
diverse as possible. And I think you heard Mr. Avery talk about
the difference between diversity on land which has been farmed for
100 or 150 years and other areas which may have more importance
in terms of their diversity.

If we were to look at species protection and biodiversity protec-
tion from that approach, how much acreage are we looking at in
terms of protecting and what would be a biologically diverse "hot
spot," for lack of a better term?

Mr. Simberloff. I agree with the proposal. To my knowledge,
the data to assess it exist for only one State, the State of Florida.
The biological survey of the Florida Game and Fresh Water Fish
Commission has very accurate data on the location of species and
communities throughout the State, and they are all mapped in a
geographic information system. These data were used to estimate
what would it take to save all of the endangered and threatened
species in the whole State of Florida, and here is the answer: First
of all, 20 percent of the State is already in Federal and State own-
ership that has some conservation mandate. It turns out that an-
other 13 percent of the land area would be required to ensure sav-
ing every single one of these threatened and endangered species.
Further, more than half of our listed species — and Florida has
more than most States — are in a few small areas in a region called
The Ridge of the State of Florida, where there is a specific kind of
habitat, and a very large fraction, more than half of the endan-
gered species, occur only in these small areas.

A large fraction of the 13 percent that would be required in addi-
tion to the already government-held land would be for one species,
the Florida panther.

So in answer to your question, here is a real hot spot. The total
acreage would be a few tens of thousands of acres that, although
a number of species are not included, would encompass more than
half. of our listed species.

Until we have a similar analysis for every State in the country,
we can't give a full answer to your question, but I think it is an
extremely promising approach.

Mr. POMBO. And I am familiar with what you are talking about.
I read some of your work on this and what has happened in Flor-
ida. Just so I didn't misunderstand you, you said tens of thousands
of acres— 10,000, 20,000, 100,000?

Mr. Simberloff. Less than 100,000, more than 10,000, on this
ridge. There is not that much land left. Many of these species are
on very small refuges, many of them owned by land trusts or by
the Nature Conservancy. Much of this land has already been
turned into citrus grove, and now it is undergoing residential devel-
opment. So we are talking about a few tens of thousands of acres
for about half the species that are listed.

Mr. PoMBO. So if you could take the publicly owned land in Flor-
ida and redistribute it to what would be the most biologically di-
verse areas, and you protected that ridge line and put our focus on
doing that, with the knowledge that we have limited resources — we
have limited ability to go out and say we are going to protect 100
percent of every species that exists within Florida, but we want to
do something to protect the biodiversity of it and redistribute those
resources so that we could protect the biological hot spots, so to
speak — that would be a possibility of doing with little or no eco-
nomic dislocation in the State?

Mr. SiMBERLOFF. I believe it would be a very cost-effective ap-
proach. The State of Florida has a large bond issue, as you prob-
ably know, that generates about $100 million a year for purchases
for conservation and recreation lands.

Of course, with the land values in Florida, it doesn't buy as many
acres as one would think, but every year proposals for purchases,
including many for conservation, come to this fund, and some of
the purchases are on that ridge exactly because they will maintain
a disproportionately large number of species.

That will be a very cost-effective way to deal with this problem.

Mr. PoMBO. You know, one of the — I think Dr. Maple may have
a little bit of experience with this. One of the problems that we
have in California right now, one of the things that we are going
through, and particularly in my area, is we have a bird which is
the Swainson's hawk, and we are on the very edge of its habitat.
And in fact we are kind of an oddity in its habitat, because the ma-
jority of its habitat is through the middle part of the country, and
there is just one little place out in the Central Valley of California
where it migrates to.

We are spending a great deal of money mitigating our impact on
that particular bird. And I would put the argument out there that
instead of protecting the edge of that habitat, that that money and
time and effort that we are putting into that may be better spent
on protecting something else in terms of setting aside a conserva-
tion area, a biologically diverse area to protect.

And it may be our focus is mishandled. I think George Miller
brought this up earlier when he talks about, you know, the moving
goalposts. You know, when you go in and try to get a permit to do
something, all of a sudden you are within — ^you are within a new
habitat area that someone has come up with. And I don't know if
you have the experience with the birds in San Joaquin County
when you were out there.

Mr. Maple. No, I didn't, but I do have experience in setting pri-
orities, and I think that is really the issue here. The science can
be debated; you know, everybody talks about sounder science.

One of the best ideas I have heard yet is this new proposed Insti-
tute for — National Institute on the Environment, which might pro-
mote more objective science or what some people think is a more
objective form of science. I think science is severely underfunded in
this country, and oftentimes it is hard to find the answers. But,
you know, if we agree on the science of it, endangerment should
be an objective process. It then is a matter for all of us to set prior-
ities.

And there are tough issues. Sometimes you have to make hard
decisions, and as you say, you have to weigh the value of this effort
to mitigate versus protecting something that may be more valu-
able. And I don't think we can have everything we want. We are
going to have to make some tough calls.

Mr. POMBO. You realize — and I am sure you do, Doctor — but
under the current act, that is not really possible. Because once it
is on the list, it is — ^you know, regardless of what our priorities are
that we have established, the list dictates that we have a full-
blown recovery effort in what in this particular instance is a local-
ized— ^you know, unique localized species, subspecies.

And no one actually even claims that it is a subspecies, it is just
that it is out at the edge of its habitat; it is several hundred miles
away from where it normally goes. And under the current imple-
mentation of the act, we don't have the flexibility to say we want
to concentrate on species which are native to California that we
have affected because of our development of farming and logging
and the development of our cities.

And, you know, we look — he uses the example of Florida. In Cali-
fornia, we have about 43 million acres, roughly, a little bit more
than that, but roughly 43 million acres that is owned by the Fed-
eral Government right now. And of the 43 million acres, about 78
percent of that is set aside with a permanent conservation ease-
ment on it. And that is a big part of California. That is a large
chunk of California. In fact, those figures came before the Califor-
nia Desert Protection Act was passed. So it is even a higher figure
than that.

And, you know, how do we go about reaching out and protecting
specific areas and change the act so that we can do that without
the fights that we get ourselves in and the conflict that we get our-
selves in? Because one of the biggest problems I have with my
farmers and ranchers out in my area is they don't think it makes
sense. They don't think that the things they are being asked to do
or the things they are being told they can't do, they don't think it
makes any sense.

I mean, they are experts in biology, the same way you are. They
have spent their entire lives out on that farm and there is nobody
that knows more about their farm than they do.

Mr. Maple. Well, I think Speaker Gingrich is correct, we are
going to have to get some people in a room and begin to under-
stand each other a little better. I think you heard a little talk about
this earlier from the experts and the various agencies.

From what I have observed — and I talk to a lot of people, I talk
to a lot of average Americans — everybody understands that these
are very difficult times for people in wildlife; and you have just got
to find a way to make these things work. I think it is abundantly
clear that the conflict that you describe just doesn't work. And as
you say, people know their land and they have a certain idea about
how things should work. If that is in disagreement with prevailing
law, I think you have to find ways, as I said, to make it work for
everybody.

It is not going to be easy, and it sounds simple to say that, but
getting people together is important. And we have just got to work

it out. It is too important for us to disagree about this, to the dis-
advantage of the pubUc.

Mr. POMBO. Dr. Cameron, you brought up something that we
have heard all over the country in terms of what people's fears are
under the current implementation of the Endangered Species Act.
And I believe those fears are very real. I believe that the loss of
private property is a very real issue under the current implementa-
tion of the act.

You said that you went and talked to a number of different peo-
ple about what the worst-case scenario would be if you introduced
what could become an endangered species on your property. Can
you share with me a little bit about what they told you?

Mr. Cameron. I will try, yes.

Our stream has some origins in public land, passes through State
land, and so on and so forth. Their possible scenario was that,
under some guise or other, our having this endangered species on
this reach of this stream could give them an excuse — if you wish,
or whatever — to begin telling us how we should graze, whether we
should graze, and in other words they would take over manage-
ment rights to thousands of acres of land, the excuse being that
they knew how to manage this grayling better than we.

There are, I think, some examples where this has occurred, and
I wasn't willing to take the risk.

Mr. PoMBO. Do you — one of the criticisms that we have heard is
that these stories are anecdotal stories that are clearly exaggerated
and false, and they just can't be true. And I think that — and I real-
ly do appreciate your being here with your experience to share that
with us, because

Mr. Cameron. May I say that the perception itself that this can
occur has profound consequences on how people behave. And, you
know, when I read in the last stock journals that somebody is being
fined $5,000 because of a couple of birds that drowned in a stock
watering tank, I think, God, there has got to be a better approach
than that, there just has to be.

Mr. POMBO. I agree with you.

Mr. Cameron. Many things, many solutions are very simple. We
have Boy Scouts, we have all kinds of people who would be willing
to help. The wood duck — at one time apparently there were more
wood ducks in captivity in England than living wild in the United
States. It turned out they needed nest boxes and people started
hanging nest boxes. Now they have hung nest boxes in South Da-
kota, we have got wood ducks where there were no wood ducks be-
fore. And it is simple things like that.

Also, I think you have got to be very careful about national legis-
lation that purports to manage things at a micro level in any way.
It just can't work. We found in our experiment with cooperative
management of a quarter of a million acres that it was largely an-
cient rules and regulations within the State that were preventing
us from using imaginative solutions to the problem and bringing
people together.

Get rid of the rules and open up opportunities for people to get
together. There is a lot of goodwill out there. Some of it has been
frustrated by the laws, but there is a lot of goodwill among land-
owners. And we are all aware that we are part of the solution.

I was a little alarmed by the notion that the entire onus for sav-
ing the world is going to be placed on the larger landowners. These
85 percent of the people who are off the hook are the ones who
saturate their lawns with pesticides and on and on and on, and
waste water on Kentucky bluegrass and pave the streets and on
and on and on.

They are not off the hook, in my opinion. They should be asking
me, what are we doing right and how can we encourage other peo-
ple to continue in these practices.

Thank you.

Mr. POMBO. Thank you. Mr. Gilchrest.

Mr. Gilchrest. Thank you, Mr. Chairman. Dr. Cameron, I was
disappointed to hear that you taught at Montana State, because
my son goes to the University of Montana in Missoula. So

Mr. Cameron. I am in trouble.

Mr. Gilchrest. But he has to pass right by your school to get
there, and you do live in a pretty part of the country. And I cer-
tainly— I am very positive that we can develop an act, a law that
encourages people to participate in a voluntary manner, encourages
Boy Scouts to come out and pass these little — maybe put some of
those little fmgerlings into your stream and encourage — it is going
to take people from the Federal Government, the State govern-
ment, the local government — more importantly, it is going to take
all people to want to participate in these programs.

A wood duck landed in the liner of my chimney to my wood stove
one time, and he fell right down into the — in the chimney. I
thought it was a rat in there; not a kangaroo rat, I don't think we
have them in Maryland. But we lifted the stovepipe out, and sure
enough, it was a creosote-soaked wood duck. And we let him go.
Then we put a little screen on top of the thing so it wouldn't hap-
pen again.

I have a question — and I really do appreciate your testimony, be-
cause it is a matter of education and cooperation and everybody
joining hands. What can we do to help each other so nobody has
to be fined or worry about doing what you are doing? And I hope
we can create an act so within a year's time you can put some of
those fish in your stream.

Mr. Cameron. I hope so, too.

Mr. Gilchrest. I have a question about — ^this thing is annoying.
I have a question about, since I see that you are a geneticist, could
you give some indication — and I am not sure what your field is —
as to the importance of diversity as far as agriculture is concerned,
whether it is dealing with hybrid com and introducing a new gene
pool, or a variety of grain crops?

Mr. Cameron. Well, it is certainly true that resistant genes for
alfalfa crop, for grain crops and whatever, have been found
throughout the world and in natural species of plants, which are
near relatives of the predecessors of our cultivated plants. And I
think we should survey the world and obtain as many seed stores
of these things as we can.

The world is becoming more and more dependent on fewer and
fewer crops. And I think we could be setting ourselves up for prob-
lems, but we have dealt with them in the past and v/e will deal
with them in the future. Your question — I think I must answer

that we should be careful in conserving the ancestral stocks of
these grains and cereals and crops that we rely upon, yes.

Mr. GiLCHREST. Thank you.

Dr. Avery, this is yours, I guess, and it is fascinating. I would
like to — and I haven't read it in its entirety. I haven't read it in
its entirety, because I just got it while I was up here. I found it
very interesting.

I would just say, sort of— we have had some people defend their
States, so I am going to sort of defend my district on the Eastern
Shore of Maryland.

The CRP program has been an enormous success, especially be-
cause of the migrating Canada geese that come down and light in
those particular areas. And I know it is different in different areas,
and any program can be abused. But I just throw that out there.

The other thing is, you have — ^you have a very good explanation
here for organic farming and why it is very difficult, and we can't
have organic farming all over because there is the need for a good
amount of organic material. But what I would say is, there is a
farmer in my district that farms about 800 acres of grain crops
using nothing but organic material.

Now, there is an advantage where he is, because we have Perdue
farms down there, so he uses a lot of chickens, a lot of eggshells,
a lot of chicken manure, and all the brush that the county can give
him. And so consequently, he has rows and rows and rows — 100,
200, 300 feet long, 20 or 30 feet high— of organic material. So I
guess if we could do that for a number of other farmers, that cer-
tainly would be possible.

But his yield is consistently higher than the yield of the more
traditional farmers that use and have to use, out of necessity, a lot
of the chemical fertilizers and pesticides and things like that. And
I hope I can get a little more time, because I will — I do want you
to respond to that, if I may have a little more time.

Mr. Avery. The United States, according to USDA analysis, has
less than 30 percent of the organic — of the nitrogen that would be
needed to support current output, let alone tripling world food pro-
duction, for the 21st century. And we are richly endowed. As a
world, we probably have only about 20 percent of the organic nitro-
gen that would be needed to support current output. China tried
this under Mao Tse-tung and it was a dreadful failure. They in-
curred the worst soil erosion they had ever seen, along with exten-
sive malnutrition.

We simply don't have it, and the only practicable way to get it,
to get more organic nitrogen, would be to commit more land to leg-
ume crops like clover and alfalfa. And if you are talking about
plowing down 10 million square miles of forest land just to get clo-
ver and alfalfa, I don't think it is a good trade. I think we lose far
too much in environmental resources.

Mr, GiLCHREST. No, I think you raise a good point. But where it
can work, I think there should also be some incentives to encourage
it.

Mr. Avery, Organic farming is in a sense its own incentive, be-
cause its costs are — ^for inputs, are relatively low, I don't particu-
larly have any — I don't own any chemical company stock, and I am
not pushing chemicals. What I am pushing is high yields. Because

92-551 - 95

the less land it takes to produce the world's food supply, the more
land we have left over for wildlife habitat. And on a global basis,
this is a huge number.

Mr. GiLCHREST. Dr. Maple, I am going to sort of— anybody else
can answer this question, out I will direct it initially to Dr. Maple.

Sometimes when we debate the Endangered Species Act and a
speaker says it should be referred to as the '^biological diversity
act," we are sort of comparing apples and oranges. There have been
grievances in the past with abusive regulators and grizzly bears
eating people's sheep and being concerned about whether or not we
should put fish in our streams or a whole range of things. So I
think the regulations can be adjusted to meet the needs of people.

But I just wanted to ask a question that dealt, pure and simple,
with biological diversity. And I think that is coming out through
the hearings that Rick has held over the past several months; and
people are beginning to understand, I think, a balanced approach
to this particular act so that we can save two things.

One is — and I don't want to sound like an alarmist, and I know
in some of the testimony environmentalists do often sound like
alarmists, but I don't know if I have a reputation around here to
be an environmentalist or not — but one is to save the biological di-
versity of the planet, not only in the United States but around the
world, we can set a pretty good example. And the other is to allow
people to be a part of this solution.

The question is, in general terms — and I know we don't have a
lot of time; could you give a very succinct, I guess, definition of
what an ecosystem is and why or why isn't diversity important in
an ecosystem? And then, is there a connection to ecosystems,
biodiversity, and the climate of the planet?

Mr. Maple. Well, I am a psychologist, so the first thing you have
got to know is I am a psychologist. So if there are any biologists
in here that are willing to take that one up?

I don't think we have got enough time to answer that question.

Mr. PoMBO. Yes, I was going to say, we are going to be here all
night.

Mr. Maple. But let me make one tiny comment about it, about
biodiversity.

You know — and it is instructive that I am a psychologist, because
I can tell you that promoting a lot of wildlife, like snakes and in-
sects and creatures like that, especially those that cause people
harm, is a very difficult process. I welcome an opportunity to pro-
mote ecosystems or biodiversity, because it is a lot easier to do
that, in my opinion, than it is to promote some of these other crit-
ters.

Some of the problem with the Endangered Species Act has sim-
ply been that the animals themselves that have been troublesome
have not been very highly regarded by the public. If an animal is
a bald eagle or a giant panda or a mountain gorilla, you don't usu-
ally have an argument. So it is a very difficult process to preserve
the whole chain of being, the whole web of life. And certainly if you
have a balanced ecosystem, my view would be that if you protect
that ecosystem, you are protecting biodiversity.

How that interrelates, you know, to the planet in other ways —
climate, et cetera — again, I would pass the baton to other experts.

Mr. Cameron. Could I comment?

Mr. SiMBERLOFF. Well, the answer to your question about climate
really couldn't be given here. About your first question, on the defi-
nition of biodiversity, the relationship of species biodiversity to eco-
system function, the congressional Office of Technology Assessment
put out a document on biodiversity that adopted the definition that
scientists generally use, that it entails genes, species, and
ecosystems.

As for the relationship of biodiversity of species to the health of
ecosystems, that has become a subject of great interest, obviously,
quite recently, and there are several ongoing studies. The first cou-
ple were published quite recently and show some relationship be-
tween the number of species and some indicators of what we think
of as ecosystem health, like the rate of nutrient cycling and pat-
terns of energy flow. But this is really a very active area of re-
search right now, undoubtedly for the very reason that you are ask-
ing the question. I feel sure that, five years from now, probably 15
studies will have been published. For now, I think there are two.

Mr. GiLCHREST. Dr. Cameron also had a comment?

Mr. Cameron. Yes, I think it is possible to confuse the issue of
the interaction of organisms in an environment and their inter-
dependence. These are quite separate things.

Darwin was talking about interaction and how they mold each
other, but the Earth has taken some awful hits in the past. The
Cretaceous was mentioned this afternoon, in which 80 to 90 per-
cent of the species of marine invertebrates were eliminated, and
yet I don't think there was any detectable change in the atmos-
phere as a consequence of this.

I think it is a terrible commentary on human beings that we are
decimating populations, but I don't think the sky is falling because
we are losing these species. E.C. Pielou, a noted ecologist in British
Columbia, wrote a book. After the Ice Age. And in this she tells
how organisms returned following the retreat of the ice. And they
didn't return as communities; they returned, marched north one by
one, and sometimes thousands of years separated plants and some
of their insects that live on them, that we now think are dependent
upon each other, but they obviously aren't because they got there
separately.

Though I agree with Dr. Simberloff, that we have to look into
this much more, I think that we can overstate the crisis at this mo-
ment and, in response to this, do things which are absolutely det-
rimental to the whole process that we are trying to keep going.

Thank you.

Mr. GiLCHREST. Thank you.

Mr. POMBO. Mrs. Chenoweth.

Mrs. Chenoweth. Dr. Cameron, I am interested in following up
on your statement and your thinking there and probe a little more.

You stated there is interaction and interrelationship.

Mr. Cameron. Interdependence.

Mrs. Chenoweth. Interdependence. Do you feel that maybe that
is where some of the problem is, and understanding and confusion
comes, with terms like biological diversity and ecosystem, because
we try to manage it? I mean, ecosystem management, by definition,
may be trying to manage the interaction of an action that may hap-

pen on one part of the planet with a relationship with what may
happen in another part of the planet.

Mr. Cameron. I am not sure exactly what you are saying. I

Mrs. Chenoweth. Let me try to make myself

Mr. Cameron. I do think that we have to have objectives, and
that we can manage for these objectives. And there are examples
of this. Kruger National Park in South Africa is one that manages
for biological diversity, and it doesn't just let things go. It bums
and it harvests, and it actually sells and makes a profit off some
of its elephants and whatever. And there is no sin in that, OK?
And so we should set objectives and manage toward them, but we
should be reasonably certain that these objectives are the best pos-
sible objectives.

Mrs. Chenoweth. I really appreciate what you say. But I think
we are nailing down the problem of the polic3anakers, the imple-
menters and the scientists. And, you know, my feeling is. Doctor,
that unless we have a reasonable area that is well defined to oper-
ate and manage within, then it creates utter chaos in the decision-
making process.

Mr. Cameron. I have sympathy with what you are saying, yes.

Mrs. Chenoweth. Dr. Simberloff, I have studied your testimony.
I am sorry I wasn't here to hear it, but how old is the law of spe-
cies area relationship?

Mr. Simberloff. It was first articulated in the early 19th cen-
tury by an English botanist examining plants in difi'erent counties
and islands in the British Isles, and he pointed to this regular rela-
tionship between area and the number of species. So it goes back
about 180 years now.

Mrs. Chenoweth. Well, in science, what is law?

Mr. Simberloff. This is an empirical law. It simply says that
when we look over and over again, we see a relationship of this
sort.

I should add that it is a law that has a lot of variation around
it. A study done by two of my students looked at a hundred sets
of sites, measured species-area relationships, and found that area
explains about half of the differences in the numbers of species.
Many other factors contribute the other half, but by and large,
whenever people look, empirically, this is what they find.

Mrs. Chenoweth. You know, I think we are defining what the
problem is, because we don't have absolutes to deal with, and when
the politicians and the polic5rmakers and the enforcers try to deal
with nonabsolutes, that is where we run into the trouble.

Can you define for me what biological diversity is?

Mr. Simberloff. What biological diversity is?

Mrs. Chenoweth. Yes. Can you define it for me?

Mr. Simberloff. I believe the definition in the congressional
OTA report is the one that is widely accepted by scientists and by
me: the numbers of entities at three levels — genes, species, and
ecosystems or communities.

Mrs. Chenoweth. What are ecosystems?

Mr. Simberloff. An ecosystem is the sum of all of the species
that make up the biological community, plus the physical environ-
ment in which that community is embedded.

Mrs. Chenoweth. Could genes be in, say, space? Are there mol-
ecules in space? Are there

Mr. SiMBERLOFF. Well, of course, these are hierarchical: genes
are in organisms and then organisms are in ecosystems.

Mrs. Chenoweth. Can you see our frustration in trying to make
these concepts manageable?

Mr. SiMBERLOFF. I certainly can. I thought that the congressional
OTA report did a great service by clarifying, to some extent, what
has been a very fluid concept. I have heard the term biodiversity
used in many different ways, but I urge the task force to go back
to that OTA report and stick to that no matter how other people
choose to define biodiversity.

Mrs. Chenoweth. Dr. Maple, I realize that you are a psycholo-
gist, but I have some questions.

You said in the News Tribune on February 27th of 1994 the fol-
lowing about privatization of Zoo Atlanta: You said, "Cities don't
know how to run zoological parks. With privatization, we got au-
tonomy as a business. There is cost and quality control, and we can
shoot for excellence. It is just hard-nosed people saying, how do we
get the bread out? Public-private partnerships can help cities," you
write, "and help zoos get better. It allows zoos to do what a com-
pany does best, and that is free enterprise and government to do
what it does best, which is to serve the public."

Dr. Maple, given what you have accomplished with privatizing
Zoo Atlanta, shouldn't this lesson also be applied to how the ESA
is implemented?

Mr. Maple. Well, I think there is a lot of room for public-private
partnership in conservation. I sort of walk in the middle. We have
a lot of industry friends. I have a lot of environmental friends.
Maybe I am the right mediator for this conversation, but I do be-
lieve that we have partnerships, and we are engaged in them now,
and they are working.

I mentioned the example of Georgia-Pacific Company working in
the Southeast to save woodpeckers and continue their business. I
think those are the kind of strategies we ought to work for. Zoologi-
cal parks are used to this process. I think that — I know this. I have
worked in government. It can be a rather difficult thing to work
within when you are entrepreneurial.

I would like to suggest we need some entrepreneurial conserva-
tion. Zoos are good at that, and there is nothing in what you say
that would make it difficult for me to agree that in the climate of
business leaders and conservation leaders getting together there is
no reason why we can't find ways to make this act work, and I
think public-private partnerships are instructive in this regard.

Mrs. Chenoweth. Doctor, your zoo does have endangered species
in it?

Mr. Maple. Yes, we do.

Mrs. Chenoweth. Do you have a section 10 permit, section 10,
a taking permit under the ESA? I hope you do. I really hope you
do.

Mr. Maple. Are you suggesting that

Mrs. Chenoweth. No, no, no. I am just suggesting you check
with your staff and make sure you do.

Mr. Maple. Listen, I want to tell you that I have a lot of sym-
pathy for the problem of dealing with the bureaucracy of
endangerment. I am having a little bit of a dispute with some of
my friends right now about reintroducing the indigo snakes onto
land where the animals previously lived, and I have not been per-
mitted up to now to actually do this because some of the experts
have suggested that we really don't need a captive propagation pro-
gram, and I regard this as a fine technicality which really begs the
issue.

So I have been there. I understand what you are saying. We have
got to find a way to make sensible decisions in conservation. There
is an awful lot of complication to this whole thing. I guess I can
understand how it evolved that way. But I think we are in a period
now where there is an opportunity to make some refinements to
make these things work better. And I, for one — and I really hear
almost nobody in the environmental movement who doesn't appre-
ciate the fact that we have overbureaucratized and overmanaged
this whole system.

Mrs. Chenoweth. Well, Dr. Maple and gentlemen, I have stud-
ied your testimony, and I want to thank you so much for what you
have invested in this process. And I really wish I could sit and
learn from you, all of you, but I know that we will be back in touch
with you because your knowledge and expertise is so important to
all of us. This is such an incredibly deep problem, as we found as
we held hearings across the Nation.

So, you know, personally, I just want to thank you very much.
I wish we had the full committee here because I wish they had ei-
ther studied your testimony or heard you because it is extremely
valuable. Thank you so much.

Thank you, Mr. Chairman.

Mr. GiLCHREST. Mr. Chair, if I can just have a second.

I want to echo the sentiments of the gentlelady from Idaho and
welcome everybody here, especially Dr. Maple. I have met you once
briefly in the past, and we had a stimulating conversation. And Dr.
Kangas from the University of Maryland, which is one of our excep-
tional places in this great State, welcome to Washington, D.C.
Thank you all very much.

Mr. POMBO. Thank you.

Before I excuse this panel, I would like to make just a couple of
points, You come at this, for the most part, as scientists from your
perspective in protecting biodiversity, your perspective from the sci-
entific viewpoint.

We are policymakers. We are legislators. And we have to not
only consider the scientific implications, we also have to consider
the very real economic and sociological considerations that make up
our job. And when we started this process several months ago, we
wanted to, as the Speaker mentioned in his testimony, bring every-
body together and have them actually listen to what the other side
is saying.

Unfortunately, that hasn't really begun to happen until the end
of the process. Because everybody came into this fight with the
long knives drawn and loaded for bear, and we had people who tes-
tified from every perspective on this, and I think that those who
benefited from this process that we have gone through actually sat

and listened to what the other side was saying and actually started
to pay attention to what the other side was saying, in that we do
have some very real conflicts that don't necessarily have to be
there. And I think that if— you know, we have heard the comment
that this is not a partisan issue, that it is a bipartisan issue.

Well, if you listen to what we are actually saying, instead of
maybe what the reporters have said that we said or what some
people have said that we have said and actually listen to what we
are saying, maybe we can find that there is more common ground
than you ever imagined in trying to solve this problem.

And I think that it is extremely important, as we move — it shall
continue to move through this process, that we do actually pull
from each other's experiences and what we have brought to this de-
bate. And I was very encouraged to hear George Miller in his state-
ment because it shows that he has actually listened to some of
those people that have had problems, and I think that we need to
do that so that we can find a way to develop an Endangered Spe-
cies Act that actually works and is supported by the people.

Thank you all very much for being here, for your testimony.

I would like to call up our third panel. Dr. Gene Wood, Dr. Tom
Cade, Robert Gordon and Dr. William Brown. Thank you very
much. I appreciate your patience in sticking with us, but this is ex-
tremely important and we need to get through.

STATEMENT OF GENE WOOD, SOCIETY OF AMERICAN FOR-
ESTERS, CLEMSON UNIVERSITY, CLEMSON, SOUTH CARO-
LINA

Mr. POMBO. Dr. Wood, you are recognized. Thank you.

Mr. Wood. Mr. Chairman, I appreciate the opportunity to appear
before the Committee on Resources to offer the viewpoints of the
Society of American Foresters (SAF) and its opinions on reauthor-
ization of the Endangered Species Act of 1973, as well as my
thoughts on this matter. The official position of SAF on reauthor-
ization of the Act is attached to my comments which I ask you to
include in the record.

As a Clemson University professor of wildlife ecology, I have
done research on endangered species, principally the red-cockaded
woodpecker, since 1975. I have also worked as a management con-
sultant to a substantial number of private forest landowners deal-
ing with listed species timber issues.

As a consultant, I have not only dealt with red-cockaded wood-
pecker issues but also in designing and overseeing extensive sur-
veys for the gopher tortoise in Mississippi and the Karner blue but-
terfly in Wisconsin. As these efforts are all conducted on commer-
cial forest lands, they are all aimed at the development of conserva-
tion strategies that will be both ecologically and economically
sound.

The Georgia-Pacific RCW plan has been referred to several times
here this afternoon. I was the senior author of that plan. I also de-
veloped the initial concept for what we believe will be the first
State-wide habitat conservation plan (HCP) in the United States
and would apply to the Karner blue butterfly in Wisconsin. And I
am a member of that HCP team and a consultant to Georgia-Pa-
cific and other forest industry members participating in that effort.

Based on my research and management experience, I would like
to state briefly several points that I consider to be fundamental to
the deliberations on reauthorization.

One, the conservation of imperiled species is a value of high pri-
ority to our Nation and its people.

Two, in the history of our Nation, no conservation step has ever
had economic and sociological consequences comparable to those as-
sociated with the listing of a species as threatened or endangered.

Three, the listing of a species should be considered an ultimate
step to be taken only when it has been clearly demonstrated that
no other measures are adequate to prevent the extinction of that
species.

Four, the American public has trusted that the sound and thor-
ough science has documented the necessity for each listing. Yet
thorough science rarely has been available at the time of any list-
ing and often remains inadequate, even during recovery planning.

Five, because an increasingly large percentage of listed species
occur scarcely or not at all on any public lands, private landowners,
who own 67 percent of the American landscape and 72 percent of
the American forest, bear a greater burden for listed species con-
servation than does any other single segment of our society.

Six, the command and control mode of conservation on the part
of the Federal Government has almost certainly had economic and
sociologic consequences far greater than anything intended or fore-
seen by the original act sponsors. These impacts have led to criti-
cally important anti-conservation sentiments regarding listed spe-
cies, especially where they occur on private lands.

Seven, the Congress must be explicit in its instructions to the
Secretaries that conservation guided by sound science must be inte-
grated into the socioeconomic fabric of our democratic and capitalis-
tic system. To do otherwise would require an increase in the police
action mode of conservation and may politically imperil the most
fundamental purpose of the act, the prevention of extinctions as a
result of inappropriate relationships between humans and other
ecosystem components.

Thank you, Mr. Chairman.

Mr. POMBO. Thank you very much.

[The statement of Mr. Wood may be found at end of hearing.]

Mr. PoMBO. Dr. Cade.

STATEMENT OF DR. TOM J. CADE, THE PEREGRINE FUND,
BOISE, IDAHO

Mr. Cade. Thank you, Mr. Chairman.

I am also a retired professor — they are the best kind — and I also
happen to be the founding chairman for a nonprofit conservation
organization called the Peregrine Fund, which is headquartered in
Boise, Idaho. I have been asked to talk specifically about the sub-
jects of captive propagation and translocation and other similar —
what we refer to as hands-on procedures — in attempts to restore
endangered species.

In my prepared statement, I have presented this information
pretty much from the point of view of my own work and that of
my organization; but I can't cover 25 years, obviously, in five min-
utes, so I am going to make just a few quick general points.

I have submitted to the committee some other supporting docu-
ments, articles and papers and so forth that I would recommend
to you and your staff to consider. I was going to bring a book that
I have been trying to get on the Speaker's list of recommended
readings for the Congress, but, unfortunately, it is a thousand
pages long, and it might be a bit too much for you folks!

Anyway, to summarize briefly about these topics, the first point
that I would like to make is that captive breeding and
translocation, reintroduction, similar procedures, do work for some
species of organisms, despite some of the pessimistic statements
that we heard earlier by my colleague and friend. Dr. Simberloff.

I know this from the work that the Peregrine Fund has done, not
only with the peregrine falcon but also with about seven other en-
dangered species of birds of prey that we have studied and released
around the world.

I also know it from information which I receive as Chairman of
the lUCN Species Survival Commission's Specialist Group on Re-
introduction. I have gotten information from around the world on
more than 100 avian projects that are under way involving
translocation of one sort or another. And some of those — not all of
them — have been successful.

Now, as far as the group that I am particularly interested in, the
birds of prey, there are at least 20 species in which significant local
or regional populations have now been reestablished by these pro-
cedures.

I will just give you two quick examples and talk about the per-
egrine falcon, because that species has served more or less as the
model for a lot of this work, and also mention another species that
you may not have heard about, the Mauritius Kestrel out in the
Indian Ocean,

The peregrine falcon is an interesting species in a lot of ways.
It has always been naturally rare, even in the best of days, but it
has a wide distribution. In fact, it is the most widely naturally dis-
tributed bird in the world.

So why do we have to be worried about it? In the 1950's and the
early 1960's, this bird, like a few others, the bald eagle and so on,
encountered some peculiar problems as a result of the overuse of
DDT and other pesticides, which resulted in reproductive failure
and the loss of population. The species disappeared over large por-
tions of its range in Europe and North America.

Just, for example, in the eastern United States, from the Mis-
sissippi River east to the Atlantic coast, where there used to be
about 400 or 450 pairs — remember, we are talking about over a
million square miles of area here, so that is a very thin popu-
lation— those birds were entirely gone, disappeared completely by
the late 1950's to early 1960's.

Now, as a result of breeding this species in captivity at Cornell
and a lot of other places, too, and releasing the progeny of those
birds back into the wild in this area that I mentioned, the eastern
area, we now have reestablished 180 pairs, approximately. That in-
cludes southern Canada and the Atlantic coastal States. So we are
quite a ways toward return to the level that this species once had
in numbers there.

In the greater Yellowstone ecosystem, which was also totally
wiped out, no peregrines left, we now have 60 pairs reintroduced
there, and I could go on with similar cases.

But the bottom line is that there are now about a thousand pairs
of peregrine falcons again nesting in the United States south of
Canada, about as many as there ever were. We think that this spe-
cies is ready to be removed from the endangered species list, and
we expect to see it delisted this year.

Now, quickly, on the Mauritius Kestrel, because I see the yellow
light is already on, when we started work on that species in 1973,
1974, it was one of the most endangered birds in the world. It was
reduced to fewer than 10 individuals. There were only two pairs
that could be found in the field, and only one of those had a female
that was still productive. So it was down to a single productive fe-
male.

By using the same techniques that we applied to the peregrine
falcon, over the following 20 years or so we have built that popu-
lation back up so that in the last breeding season there were 70
pairs nesting in the wild and about 300 individuals. We expect that
population now on its own to build up to a level of perhaps 200 or
so pairs.

Just quickly coming back to some conclusions about the role of
captive breeding. I agree with Dr. Simberloff that it is not a pana-
cea for all species, only for a few species. Many species cannot be
bred in captivity, and of those that are bred, only a few can pos-
sibly be successfully released because of difficulties in development
of behavior or other problems that result from the captive situa-
tion.

We need suitable habitats to introduce species, so we should not
think of breeding and translocation as substitutes for the preserva-
tion of habitat and for ecosystem management and other more ho-
listic actions that people have been talking about here today.
Breeding and release should be considered methods of last resort,
used only when it appears they will be helpful in a particular case.

If I could just say two things about the Endangered Species Act
as to how it has helped and how it has hindered us. The main way
we have had difficulties with the act has been in the permitting
process. It is very burdensome, and it is compounded by the fact
that we have to comply with permitting procedures with several
other Federal acts, the Migratory Bird Treaty Act and the new
Wild Bird Conservation Act, and sometimes others. Sometimes
there are conflicts over what is required among these acts.

So we would like to see the Federal permitting system for re-
search and conservation work simplified and streamlined; and we
have submitted a memorandum to your committee about some
things we think could be done through an amendment to the En-
dangered Species Act to make this situation simpler, not only for
the permittees but also for the Federal permitters, to make all of
our lives a little easier. And I would request that you look at those
recommendations.

As far as how the ESA has helped, people have been emphasizing
cooperation here today, and I agree with that. The provisions in the
act that allow for cooperation among various parties, the Federal
Government and the States and nongovernmental organizations

and even private individuals, I think are the great strength of the
act.

I would like to see section 6, for example, improved even more
and with more funding going to the States in proportion to some
of the other programs the Endangered Species Act supports, such
as consultations and law enforcement. I would like to see language
that makes it clear that nongovernmental entities are also coopera-
tors.

Thank you very much,

Mr. POMBO. Thank you.

[The statement of Mr. Cade may be found at end of hearing.]

Mr. POMBO. Mr. Gordon.

STATEMENT OF ROBERT GORDON, NATIONAL WILDERNESS
INSTITUTE, WASHINGTON, D.C.

Mr. Gordon. Mr. Chairman, thank you for this opportunity to
provide NWI's views to the Endangered Species Task Force.

The debate over the act's reauthorization is often presented in
the simplified terms of those who are defending the law and those
who are defending themselves against an out-of-control act. At
NWI, we address a different issue: the fundamental question of
whether the law has been good for wildlife and, if not, how should
we go about making it better.

Simply put, the act's principal goal is to recover species. While
some species have benefited, particularly from efforts like Dr.
Cade's, unfortunately, to date, not one species has been delisted as
a result of the act. Although several species are officially termed
recovered, in each case, data error or recovery from factors unre-
lated to the act would be a more accurate explanation.

As you can see from this chart, not a single species can legiti-
mately be claimed as recovery of the act. More disconcerting is that
there is little indication the act is generally improving species'
statuses. The Service has stated, species listed longer appear to
have a better chance of becoming stable or improving. This state-
ment leads one to believe that the act, if not yet achieving recovery,
is heading in that direction.

However, several years after making this claim, the Service re-
mains unable to substantiate it. In fact, the recently retired Deputy
Director of the Service has stated that the word "appear" in this
statement is a weasel word.

The law's advocates highlight the number of species categorized
as stable or improving, intending this to be interpreted as progress.
This, however, is a faulty assumption for several reasons.

First, the determinations of improving and stable are purely
qualitative measurements. Second, categorizing may be based on
no more than a biologist's opinion. Third, it is incorrect to assume
that because some percentage of species is called stabled or improv-
ing as concerns threats to the species at a particular moment that
the act is generally benefiting species.

This is like showing a still photograph of a car and arguing it
is going fast. From the photo, we cannot determine that it is going
fast. In fact, we cannot determine if it is moving at all or even its
direction. If it were a safe assumption that species are declining

when listed, then simply stating what percentage of species are
deemed stable might mean something, but that is not the case.

The law does not require a species population trend be negative
for listing. A species may be listed simply because of a threatened
habitat modification or even the lack of existing regulatory mecha-
nisms. And the current listing standard of best available data is
bad. Because best is a comparative word. Data need not be reliable,
adequate, accurate or even good. This standard leads to mistakes
like the Mexican duck and many others, wasting scarce conserva-
tion dollars.

The Service considers the status of 27 percent of species as un-
known, an increase of 7.6 percent from the previous report. This
high percentage of unknowns, zero recoveries to date, the Service's
inability to demonstrate statistical improvement, the law's perverse
incentives, the history of data errors, the poor listing criteria and
criteria standards, suggest that the program's implementation is
hazy at best and casts doubt on any claim of general benefit to spe-
cies.

A review of ideas and statements and recovery plans furthers
leads one to question the prospects for any future recoveries.

The Florida scrub jay plan states: Because of the extreme useful-
ness of the act in this case, it is not desirable to remove the scrub
jay from under protection of the act.

The Iowa Pleistocene snails plan states: With a return to glacial
conditions, it will be resuscitated over a major part of the upper
Midwest.

The blunt-nosed leopard lizards plan states: A current target
acreage figure of 30,000 acres has been established for the San Joa-
quin Valley floor. Conflicting land users will be reduced or elimi-
nated.

The plan for three beach mice states: Encourages restrictive
agreements in sales and rental contracts requiring house cats to be
confined and monitor activities for privately owned lands through
county planning boards, rezoning applications, et cetera.

The act's poor record does not mean that we cannot conserve en-
dangered wildlife. Compare the results of the act's approach with
voluntary, incentive-based efforts. As a result of nesting boxes built
by duck hunters and placed in swamps, there are now over three
million wood ducks, once a severely depleted species.

Because bluebird fanciers designed and placed tens of thousands
of bluebird houses, bluebirds are on the rebound from a precipitous
decline.

And wild turkeys have increased to a population high from se-
verely depleted numbers because of efforts of groups like the Na-
tional Wild Turkey Federation.

If the act had been adopted earlier in the century, wood ducks,
bluebirds and wild turkeys would have been on the endangered
species list. How could one then convince a landowner to give per-
mission to put a nesting box on his property? How many land-
owners could afford to let private groups release birds on their land
if the presence of the species meant they could no longer use their
property?

The act does not recover species, and there is little evidence that
more time, money or more aggressive application will change that.

The old way has cost billions of dollars and tremendous harm and
destroyed trust between people and wildlife officials. We need to re-
establish that trust with farmers, ranchers and other citizens to ef-
fectively conserve wildlife.

The old law has failed because it is founded, essentially, on regu-
lation and punishment. There isn't even a section of the law called
conservation or recovery. It is predominantly about bureaucracy,
and its fruits are paperwork, court cases and fines, not recovered
species. Conservation's future lies in establishing a new foundation
based on the truism that if you want more of something, you re-
ward people for it, not punish them.

The debate that is unfolding here is between methods of con-
servation. One way is shackled to the idea that a government solu-
tion of national land use control will work. The other promotes a
new way that can actually help species because it stops punishing
people for providing habitat and encourages them to do so. It cre-
ates an opportunity for government to reestablish trust and work
with citizens.

Thank you again for the opportunity to present my views, and
I commend the Chairman and the task force Chairman for address-
ing this issue, for providing so many opportunities for interested
and affected Americans to participate and for your dedication to
promote reforms that are both meaningful to wildlife and people.

Mr. POMBO. Thank you.

[The statement of Mr. Gordon may be found at end of hearing.]

Mr. PoMBO. Dr. Brown.

STATEMENT OF WILLIAM Y. BROWN, PRINCIPAL, RCG/HAGLER
BAILLY, MEMBER, NATIONAL RESEARCH COUNCIL, COMMIT-
TEE ON SCIENTIFIC ISSUES IN THE ENDANGERED SPECIES
ACT

Mr. Brown. Mr. Chairman, Madam Congresswoman, I am a
member of the National Research Council Committee on Scientific
Issues in the Endangered Species Act. Its report was issued yester-
day, and I would like to spend my few minutes just talking about
some of the report's highlights. I have a copy of the statement that
the Chairman of the NRC Committee presented yesterday; and, if
it is appropriate, I will put the statement into the record.

Mr. POMBO. Yes.

[The statement of Mr. Clegg may be found at end of hearing.]

Mr. Brown. The committee was formed — as I think you heard
this morning — at the request of one Senator and two Members of
Congress. In the letter that they sent, that triggered the report,
they asked six specific questions about the Act, and they asked the
National Academy of Science and the National Research Council to
form a group of individuals with scientific backgrounds to try to ad-
dress the questions from a scientific perspective.

That group was formed. The letter was sent in November 1991,
and it took about a year for the funding to come through, so the
study was about two-and-a-half years ago.

The committee is made up of a diverse group of individuals. Ev-
eryone has background in science, or economics in one case, and
there is one law professor. Most have had a connection with endan-

gered species or endangered species policy over some time, al-
though some are pretty pure academics.

The committee members did not just come from academic institu-
tions, but also industry and some policy groups like the Wildlife
Management Institute. My own background at the time was with
Waste Management, Inc., so my employment background was from
industry.

It is important, I think, to note that the committee worked hard
to achieve a consensus. That took some time, but, in the end, the
report does reflect a consensus. And all of the conclusions and rec-
ommendations of the report are approved by every member of the
committee. The most fundamental are to follow.

Please bear in mind that this committee did its very best to act
as a group of scientists. We recognize that there is a role for policy-
makers and a role for economic and political considerations, and we
did our very best to divorce ourselves from that.

We were of the view, reflected in the report, that the Endangered
Species Act is fundamentally sound from a scientific point of
view — its assignment of values to species; its reference to
ecosystems.

We can talk about what "ecosystem" means in the Act, but the
fact is that the ESA values not just the protection of the species
but of the ecosystems in which they occur. Ecosystem protection is
most fundamentally the framework within which the Act operates.

In particular, the committee concluded that there is an undeni-
able link between habitat conservation and species. There are some
species that have been rendered endangered by chemicals or by
taking, but clearly habitat is central and is a major cause of
endangerment.

The committee addressed the question of what are the right
units of protection. As you know, the Endangered Species Act au-
thorizes the listing of species or subspecies of animals and plants
and distinct population segments of vertebrates. The committee
concluded that the animals and plants which are conventionally
classified by taxonomists in different fields as species — full species
or subspecies — in general are valid units from the perspective of
listing. The committee's concept is something called the evolution-
ary unit, which is an assemblage of organisms that has a common
evolutionary history and a unique evolutionary future. Our view is
that species and subspecies conventionally defined fit this defini-
tion.

The real debate is on distinct population segments, and there is
ample room for debate on many of them. But we think that it is
valid to list distinct population segments if they are evolutionary
units, and there are many like the burrowing owl in Florida which
are valid units. There are some other populations that are not evo-
lutionary units, like the bald eagle in the lower 48, which is not
a separate evolutionary unit from the bald eagle as a whole. This
does not mean you should not protect the bald eagle in the lower
48 States, but it is not evolving as a separate unit from Alaska.

We found no scientific bases for any differences in protection sta-
tus between vertebrate animals and invertebrates and plants.
Again, this doesn't mean that the Congress should not consider
other factors, but there are no scientific lines that we could draw.

On the recovery process, I guess we got the closest to looking at
the regulatory system. We do have a recommendation: too often the
recovery planning process has been divorced from guidance on the
regulatory requirements of section 7 and section 9 and section 10
of the act, and the result really is not very effective from the point
of view of protecting species. Nor is it a fair thing to do to the com-
munity of individuals that is regulated by the act.

I know that the agencies involved are trying to do a better job
at integrating the scientific recovery planning effort with giving
guidance on what those requirements are: to get the requirements
out up front, and define what is OK to do or not OK. But they
should do more if the yeas and nays are said up front; we could
narrow the area where there is debate and limit back and forth
with regulators which causes delay.

The committee report expresses the view that the Endangered
Species Act has played a positive role, especially in preventing spe-
cies' extinctions in some cases. However, the report also states that
the Act is not enough, and more should be done. The committee is
not recommending an expansion of the Endangered Species Act or
the adoption of additional legislation, but there is a need to do
more, and it could take any number of forms.

My own interest is in the partnership area that we have talked
about. I think that there is a lot of environmental spirit in many
of the larger companies that I have worked with that, without reg-
ulatory mandate, will undertake voluntary programs for
biodiversity conservation.

And so, separate from this reauthorization discussion, things
should be done to encourage these partnerships. The Fish and
Wildlife Service has one program, for example, called Partners for
Wildlife. It is very small and very effective, giving technical assist-
ance and helping landowners do things on their properties at their
invitation. Programs like it should be supported, and nurtured.

These points are basically what we concluded.

Mr. POMBO. Thank you.

One of the things that was in your report was the idea of estab-
lishing survival habitat, and it says, with no considerations of eco-
nomics. Do you — I mean, I know you guys were scientists and com-
ing at it from that point of view, but do you have any idea what
the policy implications are of doing that? I mean, maybe I don't —
I just got your report, so I haven't had the chance to read the whole
thing yet, but what do you mean by that?

Mr. Brown. I think that is a fair question to ask. Well, just to
understand where it came from, we were asked to address critical
habitat by one of the questions in the letter from Congress. There
was a concern that in our committee critical habitat designations
are a long, difficult process where, among other things, economic
considerations come into force. We considered it important when a
species is listed to put it on the map so people know where it is
and what areas are most important to it. We thought that doing
this would be to everyone's benefit that is affected by the act. So
we developed that proposal.

The idea is that survival habitat would be an area no larger than
critical habitat and would generally be a much smaller subset de-
fined as that. It would be the area that is critical for survival, not

recovery — to maintain the existing population or to give some as-
surance that extinction won't occur within 25 to 50 years.

It would be a much smaller area than critical habitat. There
would be nothing from a regulatory perspective attached to sur-
vival habitat that is different than what is attached to critical habi-
tat— ^basically the requirement that is now in Section 7 prohibiting
agencies from adverse modification or destruction.

One other thing. Survival habitat designations would be in place
only until critical habitat is designated and then they would be-
come no longer effective.

Mr. POMBO. One of the dangers in what you are advocating, and
I won't dismiss it offhand because I have not had the chance to
read the whole report, but one of the dangers in what you are advo-
cating is that the vast majority of species that are on the list, they
don't know where they live. They don't have critical habitat maps.
They don't have that knowledge, and to go in with a survival habi-
tat that ensures their life for 25 to 50 years assumes that they did
good science to list the species to begin with, and I know you were
here earlier.

One of the problems we have is that with the recent listing of
the fairy shrimp in California, they assumed by where they sur-
veyed for the shrimp that it was endangered even though that
wasn't where the majority of its habitat was. They were on the
wrong side of the valley when they surveyed.

So if we went in with the survival habitat and said, this area is
survival habitat for the fairy shrimp. Fish and Wildlife would say,
you can't do anything within that survival habitat, even though
there is no critical habitat map that has been adopted, there is no
recovery plan that has been adopted.

They have no — they did not do good science to list it to begin
with, but it is just another step in the bureaucratic regulatory proc-
ess that now they have what they call a survival habitat and they
get to put this out there even though they haven't done the work
to establish where the species lives. They haven't done the work.
And if you don't know where the species live, you can't say whether
or not it is endangered.

So I think that you need to — if you do adopt an idea, and I un-
derstand why you did it, if you do adopt an idea of survival habitat,
there also has to be better science to base the listing on to begin
with than what we did.

Mr. Brown. I appreciate your point, Mr. Chairman. If I remem-
ber our recommendation accurately, I don't believe we are rec-
ommending that survival habitat be designated for already listed
species.

Mr. POMBO. No. This would be for new species coming on and
using the fairy shrimp as an example, which was listed September
15th of 1994, and now we are a few months down the road and
there is severe criticism of the science that was used, the lack of
any type of peer review, the lack of using other biological data that
was produced and available to them. You know, they didn't follow
what everybody thinks of when they think of listing an endangered
species.

Mr. Brown. Well, I guess I would — what I would like you to do
is to take the recommendation, what I think is the spirit in which

it was offered — in which it was suggested by the committee, not
really — not advocated, and really with a concern that all future
listings should convey with them some knowledge, good knowledge
of the habitat most critical to them.

We didn't audit past listings, but knowledge and habitat should
be there, and it is important to give people guidance about where
the habitat is. Survival habitat seemed to us one way you could do
that, while keeping critical habitat with its economic impact consid-
eration.

Mr. POMBO. Can you also provide for the record who you talked
to, who you

Mr. Brown. Sure.

Mr. POMBO [continuing], sought information from in coming up
with these recommendations?

Mr. Brown. I would be happy to do that and we have extensive
written input from all sorts of folks.

Mr. POMBO. I will read the report and I know I will have further
questions for you. I wish that there was an opportunity to have
read that before we had this, but I will have further questions for
you on the report to try to clarify exactly what you did mean by
certain parts of it after I have had the chance to finish reading the
entire thing. I thank you.

Mr. Gordon, in your prepared statement, you talk about plans
that have an enormous amount of habitat requirements and one of
those was the blunt-nosed leopard lizard, a current target figure.
Acreage target figure of 30,000 acres has been established in the
San Joaquin Valley floor with acquisition emphasis on optional
habitats, containing high density blunt-nosed leopard lizard popu-
lations in identified priority habitat areas, conflicting landowners
will be reduced or eliminated in an effort to restore habitat to opti-
mal conditions. And then it goes on to describe further property in
adjacent foothill and plain areas. Where did you get this from?

Mr. Gordon. The recovery plan approved by the Fish and Wild-
life Service for the blunt-nosed lizard.

Mr. POMBO. So this came right out of their recovery plan?

Mr. Gordon. Yes, sir. Last year, we undertook a review of all the
recovery plans that had been approved through a certain day. I
think it covered some 306 recovery plans and I have attached to
my statement an article concerning this study that was recently
produced in the Franklin Journal of Technology.

Mr. POMBO. This one?

Mr. Gordon. Yes, sir.

Mr. POMBO. I was reading this last night and I ran across that
and it kind of made me — woke me up a little bit, let's say. You also
talk about, in your prepared statement, that they want to depend
upon other tools to control habitat other than the Endangered Spe-
cies Act, and you list several examples of where they talk about
using local zoning ordinances and Clean Water Act, different wild
and scenic river examples. Under the current act, what authority
does Fish and Wildlife have to do this?

Mr. Gordon. I don't know the answer to that. Just to be quite
blunt. They are encouraged, obviously, all agencies are — well,
maybe I do. I think in — early in the act, under the purposes of
statements, all Federal agencies and departments, I believe, are

supposed to use their authorities for furtherance of the purposes of
the act. Therefore, any other authorities they have that might be
able to — that might allow them to try and make use of local zoning
ordinances

Mr. POMBO. But there is a difference between Federal Clean
Water Act and the Wild Scenic Rivers Act and local zoning ordi-
nances.

Mr. Gordon. Yes, there is a clear difference. I don't know the an-
swer to that, but I would assume that that is the section of the law
that a regulator would quote if you asked him, but I may be wrong.
I would be very happy to research the issue and try to get back
to you on that.

Mr. POMBO. I wish Mr. Frampton was still here. I would like to
ask him that question under that. Another thing in here that you
had was with the Iowa Pleistocene snail.

Mr. Gk)RDON. Yes, sir.

Mr. POMBO. I guess that is how you pronounce it, with a return
to glacial conditions, it will be resuscitated over the major part of
the upper Midwest provided areas are preserved and maintain.
What do they mean by that?

Mr. Gordon. I guess it is kind of a long-term program. I don't
know if it is very expensive on an annual basis, but it might
compound. As I recollect that recovery plan, the snail was found on
rocky outcrops that had algiftc talus- specific — well, it had plant life
that was similar to more northern latitudes, and these were the
last — the remaining areas from when the glacial age had last been
here and that is when the snail prospered.

And the recovery plan, the intent of the recovery plan is to make
sure those areas basically stay as they are and provide continued
habitat for that snail, and then when we enter another ice age,
which is the climate which is favorable to the snail, the snail would
then prosper.

Mr. POMBO. And that is legitimately in their recovery plan?

Mr. Gordon. Well, it is in the recovery plan, but a lot of the
statements that you find in the recovery plans almost seem laugh-
able. I think there was a process whereby very early on in a lot
of the recovery plans, there was serious intent by the authors and
they really believed that the plans were going to be carried out and
the actions were going to be implemented and they would see the
reaching of measurable goals that eventually led to the recovery of
the species.

As we went further on in later dates in the recovery plans, that
becomes questionable, whether the authors believed anybody was
really going to actually ever be implementing this plan. They
seemed to get — they started to get a bit silly. And I think it is un-
fortunate that that occurred, primarily because the law has become
more of a regulatory mechanism rather than a tool which encour-
ages the type of proactive management actions that Dr. Cade and
others take.

Mr. POMBO. Dr. Cade, you bring up propagation and the fact that
it is useful in certain circumstances.

Mr. Cade. Yes.

Mr. POMBO. Under the current implementation of the act, is it
encouraged that you experiment with captive breeding programs or

is — I mean, everything that I have heard is that they don't want
you to use it and they do not want to consider that as a viable
means of leading toward the recovery of species.

Mr. Cade. Well, I think, yes, I would agree that the current atti-
tude in the Fish and Wildlife Service and a lot of other of the land-
holding government agencies is very much toward the habitat pres-
ervation, ecosystem management approach to things and to deem-
phasize work on individual species, including captive propagation
and reintroduction.

On the other hand, I have to say that the Fish and Wildlife Serv-
ice Endangered Species Program has continued to support various
captive breeding programs like ours and the condor, whooping
crane, and a number of others, the black-footed ferret and so on,
so they are still very much into the business of supporting this
work, although in their public statements, they downplay its im-
portance.

Mr. POMBO. Now, the captive breeding programs that you have
described are with species which are on the verge of extinction.

Mr. Cade. Most of them are, yes, or were at one time, what we
would call critically endangered. That is correct. Down to a few in-
dividuals.

Mr. PoMBO. That is a 25-year process.

Mr. Cade. They are species that are either reduced down to a
few individuals in a very restricted range, such as the Mauritius
Kestrel that I talked about or the California condor would be an-
other example. Also the Hawaiian crow, or they are species with
broader distributions which have lost huge chunks of their natural
range and where it is unlikely that individuals from the outlying
populations will reinvade and repopulate those vacant areas.

Those are the sorts of situations where I think these intensive,
hands-on manipulations can be beneficial to species recovery.

Mr. PoMBO. I saw — or I read a statement about a peregrine fal-
con nesting in the top of a building in San Francisco.

Mr. Cade. Yes, that is correct. It is not alone. There are over 80
pairs, probably close to 100 pairs now nesting in cities. New York
City has 12 pairs. Los Angeles probably has that many. They have
taken over urban environments in a great way since we started re-
leasing them.

Mr. PoMBO. So the possibility exists for them to, I guess, adapt
to an urban area like that?

Mr. Cade. They can adapt to urban areas, and there were a few
pairs in cities before the DDT problem came along. New York had
a pair, Philadelphia had a pair from time to time, and there was
a very famous pair that nested for 14 years on a building in Mon-
treal; but they were exceptional.

But there was a propensity or a tendency for peregrines to do
this sort of thing, and if DDT hadn't come along and wiped them
out in the East, it is likely that this habit of going to cities would
have developed further.

But since we put these birds back that have had — how should I
put it — they have had some experience with the trappings of
human occupancy and so on, so that there is no way to avoid their
not being somewhat familiar with buildings and other structures
associated with human beings. This experience, I think but I can't

prove it, has somewhat preconditioned them to accept man-made
structures as nest sites. They nest on buildings. They nest on
bridges. They nest on towers.

Mr. PoMBO. If we were to operate more proactively with species,
species management, and instead of waiting until we were down to
the last 10 pairs and the last breeding female of a particular spe-
cies and that we had a species that was in decline and we began
an active breeding program, captive breeding program, and — to
build up the numbers and continued, I know you have learned a
lot in your time of doing this, but continued to go out back into the
wild and bring in natural gene pools so that you don't have some
of the problems that have developed in some of the other captive
breeding programs, could we not expand the use of captive breed-
ing programs if we did that?

Mr. Cade. This is pretty much what we did with the peregrine
actually. We brought in stock from all around North America for
breeding, and we used the progeny, what some people call hybrids
or mixed stock, to repopulate the eastern United States. And, yes,
if it is clear from population censuses that there is a species that
is declining at an unusually rapid rate, then that might signal the
need for some hands-on work.

Mr. PoMBO. Thank you. Dr. Wood, I understand that in your ca-
pacity that you have had to deal with conflicts in management of
different species, and particularly with the woodpecker and a but-
terfly that existed on your property. Could you elaborate on that
a little bit?

Mr. Wood. Well, those and the gopher tortoise. I think the inter-
esting thing about all three species is that their conservation is not
difficult to integrate into forest management practices. That doesn't
say that there do not have to be some alterations, i.e., modifica-
tions in how things are done, but it certainly does not require
major modifications, even on an industrial forest.

What we find with the species that I have worked with on pri-
vate lands is the necessity of having large parcels of land. As the
land parcel gets smaller, the difficulty of carrying out meaningful
conservation without severe economic impact becomes greater and
greater. Most corporate ownerships are in substantially large par-
cels.

In the case of the red-cockaded woodpecker in the South, Geor-
gia-Pacific's Crosset forest in Southeast Arkansas has been an in-
dustrial forest for close to 100 years. It has been managed for noth-
ing but timber over that time, and with even aged management
since 1963.

And yet there are only four national forests of the 12 that have
been targeted for recovery populations, that have more woodpeck-
ers than does the Crosset. We made just a few minor adjustments
in how that timber was being managed where the woodpecker was
present. Today it is supporting about 95 active colonies, and the
economic sacrifice is negligible.

It costs money — actually, most of the money is in personnel time
used to document that the plan is working — we have a memoran-
dum of agreement with the U.S. Fish and Wildlife Service, that
says that while the Georgia Pacific plan is not the same as the gov-
ernment's plan for the RCW on private lands, it is equivalent in

its conservation effect and that there will be no net loss in the de-
mographically isolated portion of the population that can be attrib-
utable to timber management.

I feel certain that we will be able to live up to that agreement.
In the case of the Kamer blue butterfly, I am optimistic it is going
to be a very substantial success story. But, again, it requires own-
ership of land in parcels large enough for flexibility. For instance,
in the case of the butterfly, if you are on a 60-year rotation in
which most red pine plantations in Wisconsin are, normally about
the first 15 years of a red pine plantation will be good butterfly
habitat. So about 25 percent of the landscape that is in a 60-year
rotation is in butterfly habitat at all times.

Now that will work OK as a conservation measure. You can as-
sure lots of butterfly habitat if you held a large parcel of land. But
if you only have 60 acres or 20 acres or something or other, some
small acreage, this strategy will not work because you cannot man-
age that timber, you cannot sell timber in small enough parcels for
that to work.

So what we are doing there is coming together with the other
non-Federal entities — particularly the State, which has land and
State holdings that are in large parcels; and the counties, which
own about 15 percent of the Wisconsin forests, and bringing in
some of the corporate lands, such as those of Georgia Pacific, which
will have about 60,000 acres affected by this plan.

And we are saying that the fundamental purpose of the act is to
prevent extinction, i.e., to ensure the future of a species. We will
ensure the future of this species in central Wisconsin on these
lands, but we want the obligations taken off of the rest of the small
private landowners who cannot deal with this. Their land is in par-
cels that are too small.

Mr. PoMBO. The original habitat of the Kamer blue butterfly ex-
tended from Wisconsin to New York.

Mr. Wood. Into southern New England even, yes.

That is one of the problems in the act. The Kamer blue butterfly
is highly abundant in central Wisconsin. Wisconsin is a State that
is very highly environmentally sensitive. Counting their species of
special concem, they have about 212 State-listed species. And, yet,
they have trouble justifying to themselves the need to list the but-
terfly. They recommended to the Federal Gk)vemment not to list as
endangered but to list as threatened.

Michigan, I understand — and I am not doing any work in Michi-
gan. It is just my understanding that there are substantial popu-
lations in Michigan.

Now also what I understand is that, in fact, the butterfly may
be endangered in southern New England, New York, northern mid-
Atlantic States, even into Iowa and Illinois. But that is not the case
in Wisconsin and Michigan.

Mr. POMBO. Let me ask you about that. How do you — how do you
deal with that, where you say it is not endangered in Wisconsin,
but it may be in New York? Is it a different butterfly?

Mr. Wood. No, it is just that there is a difference in landscape.
Where there is habitat and where there are butterflies, there will
be butterflies. They have lost that habitat.

The problem that has made it difficult for us to work with is the
criticism: "Why are you going to all this trouble if there are so
many butterflies?" Well, because, in the Act, only vertebrate fish
and wildlife can be listed by distinct population. For invertebrates
or plants, you must list rangewide under one designation.

So because it is, if the information that the Fish and Wildlife
Service has is correct, that it is endangered in a significant portion
of its range, it is then listed rangewide, not just in that portion of
the range.

Mr. POMBO. So in order to handle all the species that are on your
property, it involves extensive management of the property. Where
you cut land, cut trees, replant, that becomes habitat as you are
moving on to the next level of management.

What you are describing is what I think — what a number of peo-
ple have advocated in the Pacific Northwest on the spotted owl, is
that the answer is not to lock down the forests but to manage the
forests so that you have continuing habitat. And the current ap-
proach does not allow us to do that.

Mr. Wood. That is correct. For the species that I am familiar
with, in order to integrate them into economic land use, or what
I refer to as the working landscape, you have to look at a dynamic
landscape and understood that where habitat is now, it won't be
sometime in the future. But these species will change — will move
with the availability of habitat. That is particularly true with the
butterfly. We are working on that d3mamic. That is a part of the
science. And it has certainly been true throughout the ages.

For instance, considerable work has shown that changes in the
southern forests have occurred sporadically due to hurricanes of a
catastrophic proportion that have wiped out woodpecker habitat.
We saw this with Hurricane Hugo and the Francis Marion Forest
in South Carolina in 1989, and that was not an isolated event. And
yet there have been lots of woodpeckers on that dynamic landscape
over time.

That has been pretty well true, I think, of most landscapes. They
are dynamic.

Mr. PoMBO. Well, I appreciate a great deal the testimony of this
panel in answering the questions. I know that there is going to be
further questions that other Members will have. Unfortunately,
when we recessed today from the House, a lot of people had planes
they caught to go back home. So I know that there are further
questions, and I appreciate a great deal your patience and perse-
verance in sticking with us for the final panel and thank you very
much for being here.

With that, the hearing is adjourned.

[Whereupon, at 4:58 p.m., the subcommittee was adjourned; and
the following was submitted for the record:]

TESTIMONY OF ASSISTANT SECRETARY GEORGE T. FRAMPTON, JR. BEFORE THE
ENDANGERED SPECIES TASK FORCE OF THE HOUSE RESOURCES COMMITTEE
ON THE ENDANGERED SPECIES ACT.

May 25, 1995

I would like to thank the members of the Task Force and the
Resources Committee for the opportunity to discuss the Endangered
Species Act (ESA) , one of the most important conservation laws in
the history of this nation, and probably the world. Despite the
importance of this law, whose stated purposes are to conserve the
ecosystems on which endangered and threatened species depend and
to provide a program for their conservation, this subject seems
to be generating much more heat than light in the past several
months. Recent media coverage has focused almost entirely either
on the Act's vaunted success stories (such as bald eagles, grey
whale, and whooping cranes) or 'on reported horror stories (e.g.
surrounding the California fairy shrimp and Stephens kangaroo
rat) . While some of these stories aiffe valid, others are clearly
exaggerated or false. The point is that neither success nor
horror stories tell the real story.

What has actually been happening over the past two years, much
less publicized, is a quiet revolution in the implementation of
the Act. This is a revolution brought about by this
Administration in an attempt to do something that had not been
accomplished in the past 12 years — to make the Act work better
for both species and the public. Our key objectives are based
on a common sense approach to the Act and a concerted effort to

solve legitimate problems while preserving the core goal of
protecting our nation's priceless biological heritage. These
objectives include: relaxing burdens for small landowners;
encouraging large landowners to enter into voluntary agreements
to manage their land to protect species, as a substitute for
regulation; increasing certainty and predictability for private
landowners and local governments; expanding the role of states;
reducing socio-economic effects of listing and recovery; and
making sure good science and the most accurate data available are
being used in all ESA decision making.

As successful as our efforts to date have been, more could be
accomplished through changes Congress could make to the existing
statute that would make it possible to achieve all of the
Administration's 10 point plan announced in March of this year.
These changes would result in a major reform of the way the ESA
is administered. Congress could enact changes that would:

— provide greater flexibility in the conservation of
threatened species as originally intended by the Act;

— provide certainty for landowners who develop habitat
conservation plans or improve habitat for endangered species on
their lands that their actions will not be subject to further
restrictions under the ESA;

— exempt residential homeowners and most small landowners
whose activities affect less than 5 acres from the incidental
take prohibitions of the Act; and

-- give the states a much greater role and enhanced
flexibility in the Act's implementation.

In addition, the land management agencies are working together to
formulate proposals to further reduce delays and uncertainties
associated with the consultation process under the Act.

These changes would be significant and go to the heart of
legitimate problems associated with the Act. But just as
important, they would be consistent with our fundamental
principles for any ESA reauthorization we will support. These
include:

1) The reauthorization must be consistent with the overall
purposes of the ESA which are widely supported by the American
people. That support remains strong despite recent controversy
as evidenced in a recent Lou Harris poll in the Northwest, which
found that citizens support reauthorization of the ESA by over a
2 to 1 margin, with 71% of those polled responding that the ESA
has been effective in protecting plants and animals from
extinction. The reauthorization, therefore, must not undermine
the basic, requirement that endangered and threatened species be
conserved — with the goal being to recover species and remove
them from the list.

2) It must make the Act more workable, efficient and less
costly to implement for the government and property owners -- not
more bureaucratic, costly and unworkable.

3) Finally, the reauthorization must reduce administrative,
economic and regulatory burden on small landowners while
providing greater incentives to conserve species.

Our basic message, and the point behind the 10 point plan is that
much has been done and still can be done under existing
authority, using flexibility in the law and creativity seldom
exploited in prior Administrations. Additional flexibility can be
gained through a moderate, sensible, centrist program of
amendment in the reauthorization process - - without throwing out
the Act.

I would now like to highlight some of the areas of the law we
have been working to improve, and how our 10 point plan could
greatly reduce current problems associated with the ESA.

Relief for Small Landowners

Early this year the U.S. Fish and Wildlife Service (USFWS)
proposed a "special rule" under section 4 (d) of the Endangered
Species Act to release about 80% of all the private forest land
in Washington State (and substantial amounts in California) from
virtually all logging restrictions that would otherwise apply on
account of the northern spotted owl. This private landowner
"dividend" was possible because the President's Northwest Forest
Plan places the burden for conservation primarily on federal
forest land to meet most of the conservation needs of the owl and

5
other old-growth dependent forest species.

The proposed special rule would, for the first time, also provide
a "small landowner exemption" effective across both states.
Owners of 80 acres of forest land and/or less located anywhere in
Washington or California (even in the non-released areas) would
be exempt from the logging restrictions.

Secretary Babbitt will soon issue a proposed rule to e.xempt on a
generic basis most current landowners who use their property as a
residence, want to develop less than five acres of land, or who
undertake development activities that have a minimal impact on
the species overall. The exemption would pertain to virtually all
"threatened" species, but would not apply where cumulative
impacts to habitat from many adjacent small landowners might be
severe.

Our 10 point proposal asks Congress to provide the Fish and
Wildlife with the same kind of flexibility to extend such an
exemption for endangered species, which is not possible under
existing law.

Voluntary Agreements With Large Landowners

In the 1982 amendments to the Act, Congress reconciled conflicts

between private development and endangered species by allowing
the development of voluntary "Habitat Conservation Plans
(HCP's)." An HCP, when accepted by the USFWS, supplants the
regulatory prohibition of the Act that private landowners cannot
"take" threatened or endangered species on their property. The
plans identify management techniques to protect listed species
and/or set-asides of "reserve" areas in which habitat is
protected; in exchange, permission for development of the rest of
the property is granted.

From 1982 to 1992, fourteen HCP's were completed. Since then, we
have completed more than sixty additional HCP's, and more than
150 additional HCP's are currently being negotiated nationwide.

As a result of the new "no surprises" policy for HCP's announced
by Secretary Babbitt late last summer, landowners with approved
plans will be exempted from any additional requirements for
species covered by the plans (both listed and not yet listed) for
the life of the plan - - in some cases as long as fifty years.
Thus landowners receive a significant degree of certainty and
protection against future regulation. These multi-species HCP's
are advantageous to both parties, and may help keep additional
species off the endangered species . list.

In the Southeast United States, USFWS has signed cooperative
management agreements with three major timber companies to manage

their lands to protect red cockaded woodpeckers: Champion
International (Texas), Georgia-Pacific (Arkansas), and Hancock
Timber (Virginia) . Four more such agreements, as well as ten
HCP's, are currently under negotiation, including several that
will cover many small landowners.

For the Sandhills region of North Carolina, the USFWS recently
developed a "safe harbor" HCP to provide incentives for private
landowners to preserve and enhance red-cockaded woodpecker
habitat. The agreement promises that success in attracting more
woodpeckers to their property will not limit future development
even if the woodpeckers are later compromised. A similar process
has been proposed for the Pacific Northwest to encourage
timberland owners with emerging owl habitat not to "panic cut"
their lands before owls may be found there - - guaranteeing
future logging of these lands will not be blocked by owls
attracted to the improving habitat in the meantime.

In the Pacific Northwest, to complement the President's Forest
Plan, a team of biologists has been established in the USFWS 's
Olympia, Washington, office to negotiate HCP's with large
landowners. Agreements have been concluded with Weyerhaeuser for
its holdings in Oregon, with Simpson Timber, and with Murray-
Pacific Corp. More than a dozen additional HCP's are currently
under development including prospective agreements with the
States of Oregon and Washington, the Seattle Municipal Water

8
District, and private industrial timberland owners.

Most of these will be "multi-species" HCP's, designed to protect
dispersal habitat for owls, riparian areas necessary for spawning
salmon (both runs that are listed and runs that may be listed in
the future), and other plants and animals. The riparian
protection being incorporated in these plans are "state of the
art" for private industry and are intended to meet both federal
and state regulatory requirements well into the future.

HCP's or cooperative agreements have also been signed or
tentatively approved in the past year with states (e.g., Utah, to
protect the Virgin River spinedace) , and counties. Examples of
HCP's include Clark County, Nevada (Las Vegas), and Washington
County, Utah (St. George), to protect key populations of desert
tortoises; Riverside County, California, for the Stephens
kangaroo rat; and Bakersfield County, California (multi-species) .

In February the Plum Creek Timber Co. signed an innovative
agreement with the USFWS, F.orest Service, and State of Montana to
manage nearly 300,000 acres of private, state, and federal lands
in the Swan Valley of Montana for grizzly bear protection. Plum
Creek is the largest private landowner in Montana.

In addition, the Congress could provide additional certainty to
landowners who develop approved habitat conservation plans that

protect non-listed species as well as listed species. Landowners
who have satisfactorily demonstrated that they will protect
candidate species or the significant habitat types within the
area covered by a habitat conservation plan should be assured
that their land use activities will not be disrupted if the
candidate species or additional specific species not covered by
the plan but dependent upon the same protected habitat type are
subsequently listed under the ESA.

Greater Involvement Of States and Local Government
A major focus of criticism and frustration with the ESA has been
the lack of adequate consultation, involvement and flexibility
for the states in the implementation of the ESA. A critical
component in our 10 point plan deals with this issue and was
developed in concert with the Western Governors Association,
National Governors Association, International Association of Fish
and Wildlife Agencies (representing state fish and wildlife
departments), and many others.

The leading model for Habitat Conservation Planning spearheaded
by state «Bd local government is the Natural Communities
Conservation Planning (NCCP) process now underway in several
Southern California counties. In a special rule under the
Endangered Species Act first proposed in the Spring of 1993, the
USFWS delegated to the State and counties in Southern California
the opportunity to use existing planning processes to protect

habitat for_ the California gnatcatcher, as a substitute for
federal regulation.

This devolution of authority has spurred Orange and San Diego
counties, working with local municipalities, developers, and
environmentalists, to develop several county-wide multi-species
plans that would protect habitat for groups of species including
many that are not now on the federal list. If approved, these
plans will in effect plan for the open space, riparian,
recreation, and habitat needs of these counties well into the
21st century - - and suspend Endangered Species Act regulation
for almost all species that could conceivably be listed in the
coming decades.

Federal as well as state, local, and private funds have gone into
the planning effort, and the federal government will eventually
contribute toward land acquisition necessary for any preserves,
as will developers and state and local governments.

Final plans are expected to be proposed before the end of 1995.
In the mejuatime, interim guidelines permit subdivision and
development of up to 5% of key habitat for listed species if
targeted in less sensitive areas. This allows a "safety valve"
rather than the complete halt in development that would have
occurred if strict regulatory provisions of the Act had been
applied.

The Adir.ir.istration' s "ten point plan" of March 1995 identifies a
series of legislative changes that could be adopted to guarantee
broader state involvement in administration of the Endangered
Species Act, and make delegation to state and local governments
like that achieved in Southern California easier to structure in
future cases.

We suggest, for example, that States all be given a formal
opportunity to review the scientific basis for future listing
proposals, and that States be allowed to assume responsibility
for development and implementation of recovery plans and for
issuance of habitat conservation planning permits. Recovery plans
should also be developed jointly between the federal and state
agencies affected.

We also suggest that where a State, _ in concert with other land
stewards, develops its own conservation plan that would achieve
the objectives of a recovery plan, the USFWS be authorized to
suspend the effects of the species' listing (or several species,
if the state plan is multi-species) in that State, letting the
State ii^>le«ent its plan through state regulation and other
means. USFWS would monitor that plan and review its effectiveness
periodically.

Ensuring The Use of The Best Science

Another concern expressed by critics of the Act is that there is

92-551 - 95

insuf f icier.i: outside review of listing decisions made by USFWS.
We have adopted a policy acquiring three independent scientific
peer reviews of all listings, and suggest that this requirement
be written into the law. In addition, we support requiring that
special consideration be given to State scientific knowledge and
information. We propose that petitions be sent to each affected
State fish and wildlife agency and that the Secretary be required
to accept a State's recommendation against proposing a species
for listing or delisting unless the Secretary finds, after
independent scientific peer review, that listing is required
under the ESA.

Better Cooperation Among Federal Agencies
Several of the apparent "train wrecks" attributed to the
Endangered Species Act in the past resulted primarily from the
failure of federal agencies to (1) obey their own statutory
mandates, and (2) work together toward a common goal. Simply
getting federal agencies working together has produced a Forest
Plan for the Pacific Northwest that will provide a sustainable
long-run timber harvest while protecting the old-growth forest
ecosystem, owls, salmon habitat, and more than 1400 species
dependent on this biologically-rich and threatened ecosystem.

Our work in the San Francisco Bay/Delta contrasts with the
conflict and delay that can result from the failure of Federal
agencies to cooperate and listen to communities. Federal

13
agencies jointly produced a plan for water allocations in the San
Francisco Bay/Delta that would comply with the Endangered Species
Act and Clean Water Act this cooperation produced an agreement m
late 1994 that was joined in by the State of California, urban
water users, agricultural interests and environmentalists - -
achieving landmark consensus that has eluded policy-makers on
these issues for almost 15 years.

The Administration is considering other possible actions that
would eliminate redundant review of federal plans and actions on
federally-managed land - - allowing a single "screening" of plans
or guidelines to protect species that, once adopted, would guide
federal land managers without requiring duplicative reviews of
every timber sale, recreation development, or watershed
restoration project.

Taking Account of Socio-Economic Factors and Trade-Of fs

The Administration continues to support basing the listing of

species solely on science, not politics. But the changes detailed

above are intended to provide much greater flexibility, and

therefore acre opportunities for consideration of costs and of

socio-economic impacts, in how we go about recovering listed

species.

The use of Habitat Conservation Plans, and the greater
involvement of state and local governments, will necessarily

14
involve Xicre balancing of protection with economic costs. In
addition, by policy the Administration has now directed that
species recovery plans explicitly minimize any social and
economic impacts of recovery. The Administration supports
including such a requirement in the law.

Ultimately, the changes that have already been adopted in the
Administration's strategy recognize that the central goal of the
Act is protection of habitat for endangered species; that the
most valuable habitat usually supports a rich mi.xture of species;
and that the efforts to protect such habitat inevitably will
involve weighing costs and benefits.

Our approach to the Endangered Species Act is intended to
recognize these trade-offs and balance decisions, taking the
long-term, not the short-term, view. If good science and wise
management of our natural resources guide our actions, we will
benefit not only threatened and endangered species, but the human
species as well.

A FAIR, COOPERATIVE AND SCIENTinCALLY SOUND APTROACH TO IMPROVING
THE ENDANGERED SPECIES ACT

TEN PRINCIPLES FOR FEDERAL ENDANGERED SPECIES ACT POLICY

Ten principles guide the Administration's effort for reforming and implementing the Endangered
Species Act:

1. Base ESA deckions on sound and objective science.

Federal Endangered Species Act policy must be baaed objectively on the best scientific
information available.

2. Minimw «if ial and economic imnacts.

The ESA must be carried out in a manner that avoids unnecessary social and economic
impacts upon private property and the r^ulated public, and minimizes those impacts that
cannot be avoided, while providing effective protection and recovery of endangered and
threatened species.

3. Provide rniidc. resnonsive answers and certainty to tondownere.

The ESA must be carried out in an efficient, responsive and predictable manner to avoid
unnecessary social and economic impacts and to reduce delay and uncertainty for Tribal,
State and local governments, the private sector and individual citizens.

4. Treat landowners fairiv and with consideration.

The ESA must be administered in a manner diat assures £air and considerate treatment
for those whose use of property is affiected by its programs.

5. Create incentives for landowners to conserve suedes.

Cooperation with landowners in protecting and recovering species should be encouraged
through use of incentives.

6. Make effective «^ of ItmH.^ nohlic and nrivate resources bv focusing on groups of
spedes dependent on the ame habitat.

To make efifiBCtive use of limited resources, priority should be given to multi-^)ecies
listings, recovery actions and conservation planning.

7. Prevent SPedeff fnmi bffftmK «^Hanfi.i*H nr threatened.

In carrying out its laws and regulations, the Federal Government should seek to prevent
species from df<^iining to the point at which they must be protected under the ESA.

PROTECTING AMERICA'S UVING HERITAGE:

8. Promptly recover and de-list threatened and endangered suedes.

The ESA's goal of bringing species back to the point at which they no longer lequiie the
Act's protection should be achieved as expeditiously as practicable.

9. Promote efTiciencv and consistency.

The ESA should be administered efficiently and consistently within and between the
Dqaitments of Commerce and the Interior.

10. Provide state, tribal and local goy<fnniMit< with opportunities to plav a greater role
in mrrving out the ESA.

Building new partnerships and strengthening existing ones with state, tribal, and local
governments is essential to each of the nine previous principles and to the conservation
of species under the ESA in a £ur, predictable, efficient and effective manner.

FAIR. COOPERATIVE AND SOENTinCALLY SOUND APPROACH TO IMPROVING
THE EfWANGERED SPECIES ACT

A PACKAGE OF REFORMS TO IMPROVE THE ENDANGERED SPECIES ACT

The Clinton Administration is announcing a package of refonns and proposed rcfonns that will
have an immediate and positive effect on how the ESA is implemented throughout the Nation.
This package builds on the ten principles set forth above. It describes administrative actions that
have been taken or will be taken in the near future by the U.S. Fish and Wildlife Service (FWS)
and the National Marine Fisheries Service (NMFS). And the package identifies ways in which
implementation of the ESA could be improved through legislative action by the Congress.

1. Base ESA Dedsioas on Sound and Objective Science.

Issue DEFiNmoN: Concerns exist that decisions made under the ESA have not always
been objective or based on the best available scientific information.

Administration Position: Federal Endangered Species Act policy must be based
objectively on the best scientific information available. Therefore the Administration has
initiated the following reforms:

*■ Peer review and information standards. To ensure that Endangered Species Act policy
is based on the best scientific information available, the NMFS and the FWS have issued
a joint policy directive requiring independent scientific peer review of all proposals to
list species and all draft plans to recover species within the timefiames required by the
ESA. A separate directive establishes more rigorous standards for the kinds of scientific
information used in making ESA decisions.

* Listing petition standards. The NMFS and the FWS have published draft guidelines
for public review and comment that would set tougher, uniform standards for the
scientific determination that there is 'substantial information' to propose a species for
listing and would place more burden on the petitioner to show that the action may be
warranted.

2. Minimize Social and Econnnic Impacts.

Issue DEFwrnoN: The ESA has been criticized for not giving greater consideration to
the social and economic consequences of listing species under the Act

Administration Position: The ESA must be carried out in a manner diat avoids
unnecessary social and economic impacts upon private property and the r^ulated public,
and minimizes those impacts that cannot be avoided, while providing effective protection
and recovery of endangered and threatened species. Therefore, the Administration has
initiated or supports the following reforms:

100

PROTECTING AMERICA'S LIVING HERITAGE:

► Recovery plan development and implementation. The FWS and the NMFS have issued
a policy directive on recovery planning that will require that any social or economic
impacts resulting from implementation of recovery plans be minimized. To help ensure
that this goal is achieved, this directive requires the NMFS and the FWS to scientifically
identify the recovery needs of a species and then involve representatives of affected
groups and provide stakeholders with an opportunity to participate in developing and
implementing ^)proaches to achieve that recovery. It also will require that diverse areas
of expertise be rq)rescnted on recovery

>■ Greater JlexibQity. Rexible and creative approaches are necessary to prevent
threatened species from becoming endangered and to provide the impetus to recover
them. The CONGRESS should restore the distinction between a threatened species and
an endangered species, which was originally intended, by providing the Secretary with
flexibility to use, in consultation with the States, a wide range of administrative or
regulatory incentives, prohibitions and protections for threatened species.

*^ Landowner provisions. The policies outlined below to give landowners quick answers
and certainty and to treat landowners fairly will minimize social and economic impacts
to the private sector.

Provide Quick, Responsive Answers and Certainty to Landowners.

Issue DEFiNmoN: Concerns have been expressed by landowners and others that delay
and uncertainty in ESA decisions unnecessarily frustrate development and land use.

Administration Position: The ESA must be carried out in an efficient, responsive and
predictable manner to avoid unnecessary social and economic impacts and to reduce delay
and uncertainty for Tribal, State and local governments, the private sector and individual
citizens. Therefore, the Administration has initiated or supports the following reforms:

> Early identification ofaBowable activities. A joint FWS/NMFS policy directive has
been issued that requires the Services to identify, to the extent known at final listing,
specific activities that are exempt from or that will not be affected by the section 9
prohibitions of the ESA concerning 'take' of listed species. In addition, this directive
requires the identification of a single point of contact in a region to assist the public in
determining whether a particular activity would be prohibited under the ESA. These
initiatives will help educate the affected publics, as well as increase certainty r^arding
the effect of species listings on proposed or ongoing activities.

*■ Streamlining habitat conservation planning. The FWS and the NMFS have published
a draft habitat conservation planning handbook for public review and comment. It is
intended to provide quicker and more consistent answers to applicants for incidental take
permits. These permits allow economic use of private land for those who develop a

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A FAIR, COOPERATIVE AND SCIENTinCALLY SOUND APPROACH TO IMPROVING
TOE ENDANGERED SPECIES ACT

conservation plan under the requirements of section 10 of the ESA. The draft handbook
recognizes three cat^ories of habitat ccmservation plans based on the level of impact to
the conservation of species (high, medium, or low impact). It requires simplified
procedures and £aster permitting for low and medium impact plans.

*■ 'No surprises'. A policy of 'No Surprises' has been issued by the FWS and the
NMFS in habitat conservation plaiming under section 10 of the ESA. Under the policy,
landownera who develop an ^jptoved habitat conservation plan for any endangered or
threatened species will not be subject to later demands for a larger land or financial
commitment if the plan is adhered to-even if the needs of any species covered by the
plan increase over time. A landowner who agrees to provide for the long-term
conservation of listed species in accordance with an sppmved habitat conservation plan
is assured that activities on the land can proceed widKMit having any additional mitigation
requirements imposed, excq>t as may be provided under the terms of the plan itself.
Ccmsequently, this policy provides die necessary assurances to landowners who are
engaged in devel(q>ment activities over a period of many years that their habitat
conservation planning permits will remain valid for die life of the permits.

¥ Certainty for muM-^des planning. The CONGRESS should provide additional
certainty to landowners who develop approved habitat conservation plans that protect
non-listed species as well as listed species. Landowners who have satisfactorily
demonstrated that diey will protect candidate qwdes or the significant habitat types
within die area covered by a habitat conservation plan should be assured that their land
use activities will not be disrupted if die candidate species or additional specific species
not covered by the plan but dqwndent iqx» the same protected habitat type are
subsequently listed under the ESA.

Treat Landownen Fairly and mth Consideratkm.

Issue DEFiNmoN: The ESA has been criticized for placing an unfair burden on
landowners, particulariy small landownen.

Administration Position: The ESA must be administered in a manner Aat assures fair
and considerate treatment for those whose use of property is affected by its programs.
Therefore die Administration has initiated or siqiports die following reforms:

^■Greater Federal re^oiuUOity. The Administration is emphasizing the importance of
having each Federal agency fiilly meet its responsibilities for conserving species in order
to reduce impacts to private lands. It is facilitating economic use of private land by
placing additional federal lands in protection, by acquiring military lands when bases are
closed, by enrolling eusting federal lands in habitat reserves, and by arranging for
of RTC lands.

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PROTECTING AMERICA'S LIVING HERITAGE:

*■ Presumptions in favor of small landowners and low impact activities. For threatened
species we will propose r^ulations that allow land use activities by landowners that
result in incidental take and individually or cumulatively have no lasting effect on the
likelihood of the survival and recovery of a species and, therefore, have only negligible
adverse effects. In particular, the following activities would not be regulated under this
proposal:

activities on tiacts of land occupied by a single household and used solely

for residential purposes;

one-time activities that affect five acres of land or less of contiguous

property if that property was acquired prior to the date of listing; and

activities that are identified as negligible.

In cases in which die cumulative adverse effects of these exempted activities are likely
to be significant, the Secretary would be required to issue a special rule. The Secretary
also would be required to consider issuing a special rule to exempt activities on tracts
of land larger than 5 acres that are also likdy to be n^gible.

The CONGRESS should extend this flexibility to include activities that result in
incidental take of endangered species and the CONGRESS should provide that incidental
take activities undertaken pursuant to an approved state conservation agreement (see
recommendations under point 010) are not regulated.

Create Incentives for Landowners to Conserve Species.

Issue DEFiNmoN: Concern has been expressed that current implementation of the ESA
fails to provide incentives for species conservation or even discourages such
conservation.

Administration Position: Cooperation with landowners in protecting and recovering
species should be encouraged. Therefore, the Administration will support or has
already initiaiBd the following reforms:

> Incentives for voluntary enhancement. The FWS and the NMFS will provide
incentives to landowners who voluntarily agree to enhance the habitat on their lands by
insulating them from restrictions if they later need to bring their land back to its previous
condition. Landowners often are interested in managing their lands in ways that have
as a by-product substantial benefit to threatened and endangered species. However,
landowners currently are reluctant to manage their lands in this manner because they are
concerned that any subsequent reduction in quantity or quality of the improved habitat
would result in a violation of the ESA. The proposed policy would apply only to those

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A FAJR, COOPERATIVE AND SCIENTinCALLY SOUND APPROACH TO IMPROVING
THE ENDANGERED SPECIES ACT

situations in which it is possible to measure a conservation benefit to a species from
habitat improvements. In those cases, landowners would not be penalized for having
made those improvements.'

*■ Incentives provided by other landowner provisions. In addition, the "No Surprises'
policy and the proposed l^islative action to encourage landowners to participate in
habitat conservation planning to protect multiple species will provide significant
incentives for landowners to conserve species.

Make Effective Use of Limited Public and Private Resources by Focusing on Groups
of Species Dependent on the Same HabiUt.

Issue DEFiNmoN: The ESA has been criticized for placing too much emphasis on single
species and not enough emphasis on groups of species and habitats.

Administration Position: To make effective use of limited public and private resources,
priority should be given to multi-species listings, recovery actions and conservation
planning. Therefore, the Administration has initiated or supports the following reforms:

*■ Multi-speeies conservation emphasis. The FWS and the NMFS have adopted a policy
that emphasizes cooperative ^iproaches to conservation of groups of listed and candidate
species that are depieadent (m common habitats. It directs that multi-spedes
listing decisions should be made where possible and that recovery plans should be
developed and implemented for areas where multiple listed and candidate species occur.
The policy further emphasizes the importance of int^rating federal, state, tribal, and
private efforts in cooperative multi-species efforts under the ESA.

p' Habitat conservation and recovery planning. In addition, the habitat conservation
planning and recovery planning poUcies in this package encourage multi-species and
habitat-based conservaticm efforts.

Pfeyent Species F)rom Becoming Endangered or Threatened.

Issue DEFiNmoN: Federal land-managing agencies, States, and others have expressed
strong interest in having greater opportunities to put conservation measures in place that
would remove threats to species and make their listing unnecessary.

Administration Position: In carrying out its laws and r^ulations, the Federal
Government should seek to prevent species from declining to the point at which they
must be protected under the ESA. Therefore the Administration has initiated the
following reforms:

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PROTECTING AMERICA'S LIVING HERITAGE:

•^ Federal/State conservation of imperiled spedes. The Forest Service, BLM, National
Park Service, FWS and NMFS have signed an agreement with the International
Association of Fish and Wildlife Agencies that establishes a federal-state framework to
cooperate in efforts to reduce, mitigate, and potentially eliminate the need to list species
under the ESA.

*Pn-Usting conservation agreements. The NMFS and the FWS have published draft
guidance for public review and comment that encourages and sets uniform standards for
the development of pre-listing conservation agreements with other parties to help make
the listing of species unnecessary. The guidance also is intended to clarify the role of
the FWS and NMFS in conservation of candidate species and ensure that there is regular,
periodic review of the status of candidate species to help prevent their further decline.

> Habitat conservation planning for non-listed species. Providing additional certainty,
as recommended above, to landowners who participate in habitat conservation plans that
protect non-listed spedes as weU as listed species will help prevent species fiom
becoming threatened or endangered.

Promptiy Recover and De-list llireatened and Endancered Species.

Issue DEFiNmoN: Concerns have been e3q>ressed that too little emphasis is placed on
recovering and de-listing species once they have been listed.

Administration Position: The goal of the ESA is to bring species back to the point at
which they no longer require the Act's protection. Specifically, the Administration
supports the following reforms to promptly restore threatened and endangered species to
healthy status and then promptly de-list them:

^ Effective recovery. Recovery should be the central focus of efforts under the ESA.
Plans for the recovery of listed species should be more than discretionary bluq)rints.
They should be meaningful and provide for implementation agreements that are l^ally
bin<Ung on all parties. They should prescribe those measures necessary to achieve a
speda* itocNexy in as comprehensive and definitive manner as possible in order to
provide greater certainty and quicker decisions in meeting the requirements of the ESA.

The CONGRESS should ensure that recovery planning:

articulates definitive recovery objectives for populations (including levels

that would initiate down-listing or de-listing) based on the best available
scientific informatiai and the other requirements of the ESA;

provides aU jurisdictional entities and stakeholders an opportunity to

participate in development and implementation of the plan;

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A FAJR, COOPERATIVE AND SaENTinCALLY SOUND APPROACH TO IMPROVING
THE ENDANGERED SPECIES ACT

seeks to minimize any social or economic impacts that may result from

implementation ;

emphasizes multi-species, habitat-based approaches;

is exempted from NEPA if the planning process is equivalent to that

required by NEPA;

integration of natural resource and land management programs
at aU jurisdictional levds; and

identifies specific activities or geographic areas that arc exempt from or

that will not be affected by the section 9 prohibitions of the ESA
concerning "take' of species covoed by a plan.

The CONGRESS should improve the reco>'ery planning process under the ESA by
requiring all appropriate state and fnleral agencies to develop one or more specific
agreements to implement a recovery plan. Upon approval of an implementation
agreement by each of the dppropiiait state and federal agencies, the agreement should
be l^ally binding and incorporated into the recovery plan. Recovery plans and
implementing agreements should be reviewed and updated on a regular basis. An
incentive should be created for federal agencies to ^jprove implementation agreements
by providing an easier, quicker section 7 process. Such implementation agreements
should:

expedite and provide assurances concerning die outcome of interagency

consultations under section 7 and habitat conservation planning under

10 of the ESA;

ensure diat actions taken pursuant to the agreement meet or exceed the

requirements of tiie ESA; and

require that each s^ipropriate agency that signs an agreement comply with

its terms.

t^Mon ratioaal process for designating critieal habitat. The CONGRESS should
modify tiie timing of critical habitat designations so that they result from tiie recovery
planning process. Specifically:

Designation of critical habitat should be based (»i die current standards of

die ESA and die specific recommendations in recovery plans.

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PROTCCTING AMERICA'S LIVING HERITAGE:

Designation should occur concunentl^ with recovery plan approval, rather
than the current requirement that it be designated at the time of listing.

*^Prompt down-Usting and de-Usting. Prompt down-listing and de-listing of species
when warranted are critical to the success of the ESA. The CONGRESS should give
these actions emphasis equal to that of listing. Specifically:

Down-listing or up-listing should be done administratively based on

criteria in a recovery plan that meet the standards of the ESA and should
not be subject to the current process required for listing, de-listing and
changes in status of a species.

The de-listing process should be triggered when the criteria established by

a recovery plan are met

*■ Recovery planning deadlines. The FWS and the NMFS adopted a policy that requires
completion of a draft recovery plan within 18 mcmths of listing and a final recovery plan
within 12 months of completion of die draft plan.

^^ffimative spedes conservation by Federal agencies. Fourteen federal agencies have
entered into an unprecedented agreement to improve efforts to recover listed species.
Each agency has a^eed to identify affirmative opportunities to recover listed species and
to use its existing programs or authorities towaixl that end.

9. Promote Efikieiicy and Consisteiicy.

Issue PEFiNrnoN: The FWS and tfie NMFS have been criticized for carrying out the
ESA inconsistently and inefficiently.

Administration Position: The ESA should be administered efficiently and consistently
within and between the DqKtrtments of Conmierce and the Interior. Therefore, the
Administration has initiated the following reforms:

>JointNMFS/FWS standards and procedures. The NMFS and the FWS are committed
to administering the ESA in an efficient and consistent manner so that the public always
gets one answer from die two agencies and from different offices widiin die same
agency. The agencies will standardize dieir policies and procedures through issuance of
joint orders, guidance, r^ulations, and increased training. Consequently, each policy
identified in diis package is being implemented or proposed joindy by die FWS and the
NMFS.

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A FAIR, COOPERATIVE AND SaENTinCALLY SOUND APPROACH TO IMPROVING
THE ENDANGERED SPECIES ACT

•^ Joint section 7 eonsiUtation potides and pmeedures. The FWS and NMFS, for
example, have published a draft handbook for public review and comment that will
standaixlize the policies and procedures governing section 7 consultations between the
Services and other federal agencies concerning actions by those federal agencies that may
affect a listed species.

> National federal working groups. The agreement by 14 Federal agencies identified
above established a national interagency working group to identify and coordinate
improvements in Federal implementation of the ESA, including identification and
resolution of issues associated with interagency consultations undertaken pursuant to
7(a)(2) of the Act.

10. Provide Sute, Tribal, and Local Govemments with Opportunities to Play a Greater
Role in Carryinc Out the ESA.

Issue DEFiNmoN: State, tribal, and local govemments have expressed strong interest
in greater utilization of their expertise and in playing a greater role in the ESA's
implementation.

Administration Position: Building new partnerships and strengthening existing ones with
state, tribal, and local govemments is essential to achieving the ESA's goals in a fair,
predictable, efficient and effective manner. Therefore, the Administration has initiated
and will support the foUowing reforms to establish a new cooperative federal-state
relationship to achieve the goals of the ESA:

> Participation of Indian tribal govemments. The Departments of the Interior and
Commerce will, in consultation with Indian tribal govemments, propose a policy
directive to clarify the relationship of Indian tribal govemments to the ESA and to
provide greater opportunities for the participation of these governments in carrying out
the Act.

*■ Partidpation of State fish and wUdltfe agencies. The FWS and the NMFS have issued
a policy directive to their staff which recognizes that State fish and wildlife agencies
generally have authority and responsibility for protection and management of fish,
wildlife and their habitats, unless preempted by Federal authority, and that State
authorities, expertise and working relationsiiips with local govemments and landowners
are essential to achieving the goals of the ESA. The policy directive, therefore, requires
that State expertise and information be used in pre-listing, listing, consultation, recovery,
and conservation planning. It fiirther requires that the Services encourage the
participation of State agencies in the development and implementation of recovery plans.

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PROTECTING AMEKJCA'S LIVING HERITAGE:

*■ Facilitate State efforts to retain management authority. The CONGRESS should
provide a State with opportunities and incentives to retain its jurisdiction over management
of a threatened or endangered species within its jurisdiction. Specifically:

To encourage states to prevent the need to protect species under the ESA,

the ESA should explicitly encourage and recognize agreements to conserve
a species within a state among all appnqniate jurisdictional state and
federal agencies. If a state has approved such a conservation agreement
and the Secretary determines that it will remove the threats to the species
and promote its recovery within the state, then the Secretary should be
required to concur with the agreement and suspend the consequences
under the ESA that would otherwise result from a final decision to list a
species. The suspension should remain in place as long as the terms or
goals of the agreement are being met. The Secretary should be authorized
to revoke a suspension of the consequences of listing if the Secretary finds
that a state conservation agreement is not being carried out in accordance
with its terms.

Conservation agreements among all ^jpropriate state and federal agencies

within a state should be reviewed and updated on a regular basis.

Each a^ropriate federal and state land management agency that signs a

conservation agreement to remove threats to a species and promote its
recovery should be required to ensure that its actions are consistent with
the terms of that agreement.

Suspension of the consequences of listing a species pursuant to an

qjproved state conservation agreement should be permitted at any point
before or after a final listing decision.

^Special consideration of State sdent\fie information. The CONGRESS should
recognize that the States have substantial expertise concerning species within their
jurisdiction by requiring that special consideration be given to State scientific knowledge
and information on whether a species should be proposed for listing under the standards
of the ESA, as described below:

Petitions should be sent to each affected State fish and wildlife agency.

If a State fish and wildlife agency recommends against proposing a species
for listing or de-listing, the Secretary should be required to accept that
recommendation unless the Secretary finds, after conducting independent
scientific peer review, that the listing is required under the provisions of
the ESA.

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A FAIR, COOPERATIVE AND SCIENTinCALLY SOIWD APPROACH TO IMPROVING
THE ENDANGERED SPEOES ACT

t^Lead State role on recovery planning. The CONGRESS should provide States the
Opportunity to assume the lead responsibility for developing recovery plans and any
component implementation agreements.

In those cases in which a species' range extends beyond the boundaries of

a single state, there should be a mechanism to ensure participation by and
coordination with each affected state in the development of the plan for
the species' recovery.

The Secretary should approve a state-developed recovery plan unless the
Secretary finds that it is not adequate to meet the standards of the ESA.

> Lead State role on non-federal habitat conservation. Decisions concerning use of non-
federal lands should be made to the extent possible by state and local governments.
Therefore, the CONGRESS should:

Specifically authorize a^ipropriate State agencies, as well as the

Secretaries, to enter into voluntary pre-listing agreements with cooperating
landowners to provide assurances that further conservation measures
would not be required of the landowners should a species subsequently be
listed. Landowners who have satisfactorily demonstrated that they will
protect candidate species or the significant habitat types within the area
covered by a pre-listing agreement should be assured that they will not be
subjected to additional obligations to protect species if the candidate
species or additional specific species not covered by the agreement but
dependent upon the same protected habitat type are subsequently listed
under the ESA.

Provide a State widi die opportunity to assume responsibility for issuing
pearmits under section 10(a)C2) for areas within the State which have been
identified for such assumption in an approved recovery plan or for which
there is otherwise an sqiproved comprehensive, habitat-based state

► Remove obstacles to Federal/State/Tribal cooperation. Federal, state, tribal and local
governments should be able to cooperate and fiilly coordinate their actions in carrying
out the ESA. Specifically, the Secretary should be exempt fiom the provisions of die
Federal Advisory Committee Act in cooperating and coordinating with state, tribal or
local governments in carrying out the ESA.

PROTECTING AMERICA'S LIVING HERITAGE:

CONCLUSION

This reform package reflects the Administration's strong commitment to cany out the ESA in
a fair, efficient and scientifically sound manner. The improvements that have been initiated and
the legislative action recommended build on the existing law to provide effective conservation
of threatened and endangered species and fairness to people through innovative, cooperative, and
comprehensive approaches.

Ill

Testimony of

Rolland A. Schmitten

Assistant Administrator for Fisheries

National Oceanic and Atmospheric Administration

U.S. Department of Commerce

Before the

Endangered Species Act Task Force
U.S. House of Representatives

May 25, 1995

Mr. Chairman and members of the Task Force: I am Rolland
Schmitten, Assistant Administrator for Fisheries, National Oceanic
and Atmospheric Administration (NOAA) , U.S. Department of Commerce.
It is a pleasure to be here today to discuss the reauthorization of
the Endangered Species Act (ESA) .

The ESA is an extremely important and necessary piece of
legislation and its basic goals should remain unchanged. The ESA
was enacted over twenty years ago, and for the most part our
experience has shown that the goals of species conservation and
sustainability of commercial and recreational opportunities are
compatible. While the ESA has worked well, the Administration has
been making many administrative changes and has suggested some
related legislative modifications which are reflected in the March
6, 1995, joint ten point plan issued by Secretary Babbitt and Under
Secretary Baker to improve the ESA.

Introduction

NMFS shares ESA responsibility with the Interior Department's Fish

112

and Wildlife Service (FWS) . NMFS and FWS administer the ESA
programs similarly, but in a few areas which I will mention, NMFS
is unique. NMFS has jurisdiction over most marine species and the
FWS is responsible for birds, terrestrial and most fresh water
species. NMFS has jurisdiction over sea turtles when they are at
sea and the FWS has jurisdiction when they are nesting on beaches.
The two agencies share responsibility for Gulf sturgeon.

NMFS is responsible for protection for over 30 marine and
anadromous species under the ESA. These include whales, sea lions,
seals, sea turtles, various West Coast Chinook and sockeye salmon;
and Gulf and Shortnose sturgeon. Although I cannot over-emphasize
that the ESA is meant to protect all animals, large and small,
NMFS' listed species are truly magnificent animals. They have a
special place culturally, aesthetically and biologically in our
world.

Most of the marine species that have been listed by NMFS are highly
migratory and may have ranges across international boundaries,
multiple states and regions of the country. Managing the recovery
of species that travel through multiple jurisdictions including
local, state, tribal, federal and international, requires an
enormous amount of planning, flexibility and coordination. NMFS
headquarters has provided oversight that has been important in
providing for national consistency while allowing for local
flexibility.

113

The ESA mandates the protection and conservation of species and
populations that are endangered, or threatened with extinction, and
the conservation of the ecosystems on which these species depend,
by all Federal agencies. Our efforts to accomplish these goals
reflect NMFS' strong environmental concerns, while not losing sight
of other priorities for sustainable economic development and
environmental stewardship. Our actions conserve endangered and
threatened species, while at the same time, allowing for the
commercial and recreational use of other marine and anadromous
resources as well as economic opportunity.

NMFS Stewardship of the Nation^ s Living Marine Resources
The most efficient and effective way to conserve species is to
prevent them from becoming threatened or endangered in the first
place. Other environmental laws — including the National
Environmental Policy Act, the Fish and Wildlife Coordination Act,
the Magnuson Fishery Conservation and Management Act, the Clean
Water Act, and the Marine Mammal Protection Act — if used
properly, provide mechanisms to prevent listing of species. NMFS
and other resource agencies have developed programs to conserve
species before they become protected under the ESA. These efforts
include habitat conservation plans, information exchange, and joint
data collection on the status of species.

ESA Decisions Occur at the Local Level

Once an ESA petition is accepted for review, ESA actions begin in

114

NMFS' regional and field offices. The vast majority of NMFS
employees answer directly to a regional director in one of the five
regions. Our field personnel have established close working
relationships with their state resource agency counterparts, the
field offices of other Federal agencies, local governments, tribal
organizations, and other public and private groups.

As a former Northwest Regional Director, I know how important it is
for NMFS personnel to have direct contact and a stake in the
communities their actions affect. Take for example, the listing
process. Many times it begins with a petition to NMFS from an
individual, a fishing organization, or a local conservation group,
requesting ESA protection for a species. Section 4(b) (3) (A) of the
ESA requires a determination, within 90 days after receiving a
petition, of whether the petition presents substantial scientific
and commercial information to warrant further action. Most NMFS
listing actions are the result of petitions received from the
public.

If a petition presents information that a listing may be warranted,
NMFS initiates a status review for the species. The status review
sets the groundwork for all subsequent actions with regard to
conservation of the species. Therefore, in many cases, NMFS
assembles a biological review team of scientists and other experts
from outside the agency familiar with the species and area. They
provide information to NMFS for use in the status review of the

115

species. NMFS utilizes this process to help guarantee that the
best science is used in the initial stages of the ESA listing
process.

Under ESA Section 4(b) (3) (B) , NMFS makes a finding within one year
about whether the proposed listing is warranted or not. If a
petition action is warranted, a general notice of proposed listing
is published. During this time the public is encouraged to and
actively participates in public meetings and provides written
comments on the proposed listing. The regional office reviews and
responds to written comments. NMFS also coordinates its actions
with state and tribal governments to provide further local input
prior to release of the status review. All this information is
compiled and analyzed in the field along with other information
collected independently by NMFS. Within one year of that proposed
listing, NMFS is required under ESA Section 4(b)(6)(A) to make a
final determination.

Once a species is listed, the ESA requires section 7 consultations
be conducted with Federal agencies on activities that may affect
the species or its critical habitat. It ensures that any action
authorized by a Federal agency is not likely to jeopardize the
continued existence of an endangered or threatened species, or to
destroy or adversely modify its critical habitat.

116

since 1990, NMFS has conducted over 4 00 formal section 7
consultations, including fisheries management plans over which NMFS
has jurisdiction. In almost every case the consultations ensured
that Federal activities could be carried out without being likely
to jeopardize a listed species or critical habitat. Of these
consultations, only 11 resulted in a conclusion that the activity
would jeopardize the continued existence of listed species. In all
11, reasonable and prudent alternatives were identified that
allowed the activities to continue with modifications that would
protect the species.

We believe that in many instances the consultation process can be
streamlined through addressing large scale programs that may
culminate in project-specific actions. NMFS encourages the use of
a programmatic method whenever it is appropriate to eliminate
redundancy. NMFS has used this method in three cases where it
issued biological opinions: hopper dredging in the southeastern
United States (U.S. Army Corps of Engineers) ; removal of certain
oil and gas platforms and related structures in Federal waters in
the Gulf of Mexico (issued to the Minerals Management Service) ; and
impact of shrimp trawling in the Southeastern United States (NMFS) .
NMFS is also determining the feasibility of using the programmatic
nethod for all West Coast and Alaska salmon fisheries.

The biological opinion with Mineral Management Service, which
addresses- structure removals, analyzes the impacts on listed

117

species associated with the required removal of offshore structures
no longer needed for oil and gas production. To date more than 500
structures have been removed under the criteria set up by the
program opinion. This single programmatic consultation allowed for
the removal of structures that follows set criteria and avoided the
need for a biological opinion before each rig removal.

NMFS must designate habitat critical for the conservation of listed
species. Most of the marine species listed by NMFS are highly
migratory and their ranges extend well beyond the immediate
location of the species. For example, rookeries and other haul-out
areas for pinnipeds (seals) are essential to their existence but
only during very short periods of their life cycle. NMFS has
designated critical habitat for Steller sea lions which includes
major rookeries and haul-outs in Alaska, California and Oregon. In
addition, two special aquatic foraging areas in the Bering
Sea/Aleutian Islands, and a third in the western Gulf of Alaska,
were designated.

The designation of critical habitat, if determined to be beneficial
to the species, should be part of the recovery process, not the
listing process, and this is recognized in the Administration's ten
point plan. The definition of critical habitat is tied to the
conservation of the species, which makes it more appropriate as
part of recovery. In addition, this would allow for further
research and information as well as involvement of the recovery

118

team in the designation of critical habitat. Recovery plans are
developed by regional teams that devise solutions utilizing the
best available science, and taking into account the economic
impacts of conservation actions and the views of affected resource
users, managers, conservation groups, and other interested parties.
The broad ESA strategy to accomplish this task directs the
development and implementation of "recovery plans."

In coordinating the recovery plans we use implementation teams
involving regional representatives. The Southeastern and New
England Implementation Teams for the recovery of the right whale
are a good example of regionally based groups that include
representatives from county, state and Federal agencies, private
organizations, and researchers. The goal of the Southeastern team
is to reduce to zero human-induced mortality caused by collision
between right whales and the large vessels that transit this area.
Collision is a significant impediment to the recovery of this
species. The New England team is examining the cumulative effects
of the multiple discharges of waste and other matter that are being
dumped into Massachusetts and Cape Cod Bays, the effects of vessel
traffic on whale behavior, and the potential effects of commercial
fishing on all protected species in New England.

Coordination of Policies

NMFS works closely with the Department of the Interior and other
Federal agencies to ensure that our ESA policies, guidelines, and

119

programs are consistent. This is essential for Federal agencies,
which must consult with NMFS and have a duty to conserve listed
species. It is equally important for all other groups, whether
private or state, tribal, or local governments, to know that, when
their activities bring them under the authority of the ESA, they
will receive fair and consistent treatment from the Federal
government .

Demonstrating our commitment to operate consistently and to include
those who are affected by the ESA within the decision-making
process, NMFS and FWS a year ago jointly issued the following
policies:

1. Peer Review - This policy clarifies the role of peer review
in ESA- related activities undertaken by NMFS and FWS. The policy
complements — but does not circumvent or supersede — the current
public review process in the listing and recovery programs.

2. Recovery Planning and Participation - This policy minimizes
social and economic impacts, consistent with timely recovery of
listed species. It expands public participation through the public
notice and comment period into the recovery planning process.

3. Take Guidelines - This policy establishes procedures, when
a species is listed, for identifying activities that will or will
not constitute a taking of the species.

4. Ecosystem Approach - This policy clarifies how NMFS and FWS
will incorporate ecosystem considerations in all ESA activities.

5. Information Standards - This policy establishes criteria,

120

procedures and guidelines to ensure that decisions of KMFS and FWS
are based on the best available scientific and commercial data.

6. Participation of State Agencies in ESA Activities - This
policy clarifies how States participate in the ESA activities of
NMFS and FWS — including prelisting, listing, consultation,
recovery, and issuance of permits.

On December 21, 1994, NMFS and FWS issued a proposed joint draft
policy regarding the recognition of distinct vertebrate population
segments. This policy is consistent with our November 20, 1991
policy on applying the definition of species to Pacific salmonids.
NMFS has had several workshops on the subject on species
definition, including a national one in May 1994 with the American
Fisheries Society. We will continue to hold workshops with experts
and affected parties on this very important subject.

Providing Certainty in Activities

NMFS is actively engaged in efforts to protect species that are at
risk of being listed. We are doing this most actively in the West
where we are working with Federal, state and private landowners to
protect anadromous fish that are not presently listed under the
ESA. Our current focus in this eurea is to work with landowners -
either private or state - that are already working with FWS on
Habitat Conservation Plans for spotted owls and marbled murrelets.
Our goal is to make it easier for these landowners to conduct
activities while allowing for the conservation of wildlife. Then,

121

if, for example, other salmonids are listed under ESA in the
future, the bulk of the conservation work will have been finished,
thus making life easier for non-Federal landowners.

Most of NMFS' listings involve species in marine environments and
do not affect private property owners. Through the "no surprises"
policy jointly adopted by NMFS and FWS last year, private
landowners participating in approved habitat conservation plans
will be assured that they will have no increased ESA obligations,
for species covered by a plan, for the life of the plan.

To further assure landowners, NMFS supports the proposed Small
Landowners Exemption. The proposed regulations will exempt the
following from ESA prohibitions that protect most threatened
species: activities on residential tracts of land, activities
(including commercial) affecting 5 acres or less of contiguous
property, and other activities identified as negligible. This is
a major provision in the Administration's package to improve the
ESA. NMFS strongly supports the small landowners exemptions and
other points in the Administration's package of reforms. We think
that it is important to clearly identify activities prohibited by
an ESA listing. Currently, when NMFS lists a threatened species, it
usually identifies prohibited acts under section 4(d) of the ESA.
This flexibility is allowed for threatened species through section
4(d) of the act, but it should also be made available for
endangered species. By doing this, the public is given a better

122

opportunity to understand what type of activities would still be
permissible.

Through an interagency working group, NMFS, FWS, and other
interested agencies are pursuing other initiatives for
regulatory/administrative reform, such as section 7 guidelines, to
ensure consistency among the agencies in carrying out the mandates
of the ESA.

Building on Cooperative Efforts with State and Local Communities
Section 6 of the ESA enables NMFS to develop partnerships with
states to further species protection and conservation efforts.
NMFS has section 6 agreements with South Carolina, Georgia, and New
York. So far, because of funding constraints, NMFS has limited
this program to these modest but effective efforts. In 1996 NMFS
is requesting $2 million to expand this program. Our goal is to
enter into at least three agreements annually until all coastal
states that wish to participate have agreements. This effort is
consistent with the Administration's plan to increase state
involvement in the recovery process and facilitate the exchange of
information among governments, academic institutions, businesses,
and concerned individuals.

NMFS also intends to continue using its ESA section 10 authority in
an approach to allow designated states to regulate activities under
that authority. In these situations NMFS will issue a broad

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section 10 permit to the state covering all activities subjected to
those state regulations. This avoids the need to burden
individuals with a layer of Federal bureaucracy in addition to
state regulation of their activities. For example, a section 10
incidental take permit has been issued to Idaho for sport-fishing.
This authority allows the Idaho Department of Fish and Game to
license recreational fishing in areas utilized by endangered and
threatened fish. This action provides continued opportunities for
recreational fishing.

Conclusion

As NMFS focuses more on the long-term goal of the ESA
— recovery of listed species — the challenges (and sometimes the
obstacles) become even greater. The ESA has been in effect for
more than 2 0 years, and the need to protect threatened and
endangered species is greater than it has ever been. The
implementation of the ESA must be flexible to new challenges. This
flexibility can be obtained through legislative or administrative
changes. The Administration has made a series of administrative
improvements and legislative recommendations to accomplish this
goal. These efforts embody the Administration's philosophy of
ecosystem based management allowing for economic development,
recovery of listed species and the prevention of further species
listings.

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Thank you for this opportunity to testify before the Task Force.
I will be pleased to answer any questions you may have.

125

STATEMENT OF
DAVID G. UNGER, ASSOCIATE CHIEF
FOREST SERVICE
UNITED STATES DEPARTMENT OF AGRICULTURE

Before the

Endangered Species Act Task Force

Committee on Resources

United States House of Representatives

Concerning Inplementation of the Endangered Species Act

May 25, 1995

MR. CHAIRMAN AND MEMBERS OF THE TASK FORCE:

Thank you for the opportunity to discuss activities of the Forest
Service involved in the implementation of the Endangered Species
Act (ESA) on National Forest System lands.

Review of Forest Service Statutes

Before addressing implementation of ESA, I think it is important
to highlight an initiative by the Department of Agriculture
intended to make the Forest Service a more effective and efficient
agency. On April 12, Secretary Glickman asked for a review of the
laws, regulations, and policies that guide the management of
National Forest System lands. At his request, a task force of
Forest Service and Office of the General Counsel personnel was

92-551 - 95

formed by Under Secretary Lyons to (1) enumerate the statutes,
regulations, and policies that guide the activities of the Forest
Service, including those that other agencies administer that
affect activities on National Forest System lands, (2) evaluate
how these authorities relate to each other, whether they conflict,
and where conflicts occur, and (3) recommend measures for
streamlining, reducing conflicts, redundancy, and in^roving cost
efficiency. Additional guidance has focused this effort on the
relationships between seven key statutes, of which the ESA is
one. The report is due to the Secretary by June 1.

This effort reflects the Secretary's commitment to apply common
sense to the rules and regulations that guide the Department of
Agriculture.

Program Regp9ngil?llitigP

The Forest Service has multiple-use management responsibilities
for 191 million acres of forests, rangelajids and grasslands in the
National Forest System. The challenge for the Forest Service is
to provide uses, values, products and services for the American
people while ensuring protection of basic resources, including
threatened and endangered species. As we have seen in the Pacific
Northwest with the spotted owl and salmon issues, as an exan^le,
this is no easy task.

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127

PonHP-rvation and Recovery Efforts

About one- third of all species currently listed under the
Endangered Species Act are knovm to occur on the National Forests
and Grasslands. As other lands and habitats come under increasing
human pressure, public lands are becoming more important for rare
species and species at risk.

The Forest Service has been successful in protecting and improving
hcQjitat conditions for many threatened and endangered species
throughout the United States and instrumental in focusing
attention on international conservation efforts. With help from
the Forest Service, the bald eagle, peregrine falcon, grizzly
bear, eastern timber wolf, black- footed ferret, Puerto Rican
parrot, and greenback cutthroat trout have been brought back from
the brink of extinction. Several of these species have been or
are under consideration for being reclassified from Endangered to
Threatened status.

We recognize that recovery of threatened and endangered species is
not a quick or simple process. Recovery efforts are expensive and
have required significant reductions in certain activities such as
timber harvesting. In 1993, the Forest Service spent $39 million
on measures to protect 253 listed species. Of this amount, $8.3
million went to Forest Service research to support studies on 69
listed species. The majority of threatened and endangered Species

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128

expenditures were spent on 12 species: the bald eagle, northern
spotted owl, red-cockaded woodpecker, four Snake River salmon
stocks, grizzly bear, gray wolf, peregrine falcon, Mexican spotted
owl and marbled murrelet.

Role of Forest Service Research in the Threatened and Endangered
Species Program

Research plays a critical role in the Forest Service's management
and recovery efforts for threatened and endangered species.
Species are at greatest risk when we lack the basic vmderstanding
of what an organism requires for its existence or when we are
unable to predict how a particular ecosystem will respond to a
change. The role of Forest Service research is to acquire both
the knowledge of the habitat needs of threatened and endangered
species and the cUaility to predict how threatened and endangered
species will respond to hadsitat manipulation. Forest Service
research has been instrumental in the successful recovery efforts
involving the grizzly bear and red-cockaded woodpecker and in
assisting in the ongoing recovery efforts for many other species.

Sensitive Species Prograun

Early on, we embraced the notion that the best way to conserve
threatened and endangered species is by implementing a proactive
strategy that, through protection and habitat conservation, can
prevent the need for listing. Waiting for a species to be listed

129

before initiating conservation measures is simply too late. In
1980, to formalize this approach, the Forest Service created a
sensitive species program. Under this progreun, we identify
species of concern and implement heibitat conservation strategies
before their survival is clearly at risk. So far, we have
designated about 2,300 species of plants and animals as
sensitive. Many of these species exist together in rare or unique
communities. Our conservation strategies emphasize ecosystem
restoration and multi- species approaches.

In the past year, we have increased efforts to work with other
Federal agencies and non- federal partners to further this
listing-prevention strategy. An agreement was signed last year
with four federal agencies, including the two ESA regulatory
agencies. This agreement provides the framework for avoiding
listing under the Endangered Species Act of additional species
through the development of conservation assessments, strategies
and agreements. Just last week, a conservation agreement to
protect the Arizona Willow was signed with the National Park
Service and the U.S. Fish and Wildlife Service in cooperation
with the Arizona Geune and Fish Department, Utah Division of
Wildlife Resources and the White Mountain Apache Tribe.
Implementing this agreement is designed to negate threats to this
species and avoid the need to list it under ESA.

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130

Section -7 ([^""gul^^'^ion

The consultation process is perhaps the most contentious aspect of
ESA. Most Section 7 consultations are completed in a manner that
allows the Forest Service to complete land management activities
in a timely fashion. Approximately 85 percent of Forest Service
projects are determined to: (1) not affect federally listed
species, and therefore do not require involvement of the
regulatory agencies; or (2) are handled through informal
consultation when Forest Service biologists determine that an
activity is not likely to adversely affect listed species, and FWS
or NMFS concur.

When formal consultation occurs, it usually is completed within
the regulatory time fraime of 135 days from the date the action
agency requests it (this includes 90 days to conclude the
consultation, with the biological opinion being delivered within
the following 4 5 days) . For Region 1 of the Fish and Wildlife
Service (headquartered in Portland, Ore.), for example, the
average turnaround time for Section 7 biological opinions is 83
days, and the Region recently committed to reduce that time to 60
days or less.

Although we have delays in implementing Forest Service projects
because of formal consultations not being completed within the
regulatory time fraune, no Forest Service proposed action has been

131

stopped because we could not find a reasoncible alternative that
would accommodate the needs of a listed species.

The consultation process can be unwieldy when new information,
such as a listing decision, comes to light when project planning
and analysis is near completion or after a project has begun.
Consultations must be completed before work on these projects can
continue- -regardless of the disruption or loss of investment
caused by the delays. This situation is especially acute when the
consultation involves a species, such as the Snake River salmon,
that is distributed over a broad range. The work generated by a
new listing often strains the capabilities of the National Marine
Fisheries Service and the Fish and Wildlife Service to complete
timely consultations.

There are several new interagency efforts to streamline the
consultation process. In March, the Forest Service, BLM, Fish and
Wildlife Service and National Marine Fisheries Service agreed to a
joint approach for streamlining consultations related to forest
health and timber salvage projects. In addition. Section 7
consultations are increasingly being "batched" to facilitate
consultation on numerous similar projects. When such
consultations are combined, the process is expedited. Also, the
Executive Branch agencies are working together to develop
counterpart regulations which are intended to streamline
consultations on progreunmatic actions. All of these efforts
should minimize delays in the future.

132

mrrurft Pirection

We fully support the purpose of the Endangered Species Act and are
committed to effective implementation of the law. We are working
diligently with the Fish and Wildlife Service and the National
Marine Fisheries Service to improve interagency coordination. We
support efforts to streamline and simplify the Act consistent with
its objective of species conservation. We hope to work with this
Task Force and others in efforts to improve and strecimline the
approach to species conservation and overall resource management.
This concludes my prepared remarks. I will be pleased to answer
your questions.

133

■^Pfe

National Association of State Departments of AcRicuLruRE

1156 15th STRhCT. N. W. • 5(77E 1020 • Washington. DC 20005
TUF.PHONf.: 202/296-9680' Fax: 202/296-9686

SmON STATEMENT

TESTIMO^fY OF

Thomas A. Kourlis, Commissioner

Colorado Department of Agriculture

ON behalf of the

National AssocL^TION of State Departments of Agriculture

before the

House Committee on Resources

Task Force on Endangered Species Act

U.S. House of Representatives

May 25, 1995

re: ReauthorizatUm of the Endangered Species Act

Good morning Mr. Chairman. My name is Tom Kourlis, and I am the Commissioner of the Colorado
Department of Agriculture and Chairman of the Endangered Species Committee for the National Association
of State Departments of Agriculture (NASD A). It is a pleasure to appear before this Task Force on behalf
of NASDA to discuss the reauthorization of the Endangered Species Act (ESA). NASD A is the nonprofit
association of public officials representing the Commissioners, Secretaries and Directors of Agricultiu'e in
the fifty states and the territories of American Samoa, Guam, Puerto Rico, and the Virgin Islands. As the
chief state agriculture officials, NASDA's members are keenly aware of the importance of balancing
agriculmral production and natural resource conservation on their state's and the nation's economy.

I am a sheep and cattle rancher in northwestern Colorado and am actively involved in the ranch my father
founded in 1926. I have managed the ranch on behalf of myself and three generations of my family for 22
years. My ranch is located in the Axial Basin along the Yampa River, which is a tributary to the Colorado
River. The reach of the Yampa River that runs through my meadows has been designated as critical habitat
for endangered fish species.

Neighboring rangeland is being considered as a site for fumre reintroduction of endangered black footed
ferrets, which have been raised in captivity. If that happens, many business activities, including grazing
sheep and cattie, will be affected within a seven-mile radius of the ferrets' new home.

Implementation of the ESA

I am here today to discuss how we can make the Endangered Species Act better, and how it can be made
to work for those of us in agriculture who are in a position to voluntarily cooperate with species recovery
efforts.

NASDA IS A NONPROFIT ASSOCIATION OF PUBLIC OFFICIALS REPRESENTING THE COMMISSIONERS.

Secretaries and Directors of agriculture in the fiftt states and four TEiutnoRiES.

134

In my view, the protection of threatened and endangered species depends on three key principles: 1)
Developing coopierative relationships among federal, state, and local governments, and private landowners
to defuse the fear of federal authority; 2) Assuring that recovery efforts include not only biological integrity
but also cost effectiveness; and 3) Setting realistic goals so that recovery programs have credibility with
citizens who will be willing to participate. The success of new, cooperative relationships between those
affected by the Endangered Species Act will depend on rewriting the Act in such a way that all vested parties
share management decisions.

With over 20 years experience with the ESA, we have too few biological successes and too many instances
of failure. Perhaps Congress should consider a different approach to ESA implementation. Let me offer
a suggestion.

States should be given more authority so as to balance the powerful role of the U.S. Fish and Wildlife
Service (FWS). The FWS currently holds all the cards, and this structure breeds resentment, distrust and
gridlock in all implementation phases. If states shared more of the decisions for the success of ESA
recovery plans, the atmosphere for cooperation and consultation would be greatly improved. I am endorsing
neither federal primacy nor state primacy; what I am proposing is a federal-state partnership.

Such partnerships must offer all parties certainty what their public and private investments and activities will
not be sacrificed, and that the costs of implementing the Act will be boriK by society as a whole and not
solely by the individual landowner, nonfederal landowners and federal land users (through permit fees).

It is my opinion that much of the controversy surrounding the existing Act is the result of an overzealous
attempt to pursue "perfect" solutions to declining species problems. Those of us who have spent our lives
watching the unpredictable and imponderable ways of nature know that often we must settle for something
"good" rather than "perfect"— but, something that works. We must decide when "good" is good enough
to meet the needs of declining species as well as the goals of society.

Let me give you an example. In order to hasten recovery of endangered fish and in keeping with the
program goals of having a recovered species, should we not take fertilized eggs from the endangered fish
that are native to the region and raise hundreds of offspring in captivity and release them into the critical
habitat areas to jump start the recovery, rather than waiting for the self propagation of the species through
habiut modification? A similar effort was initiated in Colorado, but when the fish were mature fish, the
Fish and Wildlife Service denied permission to release them in the river.

While I recognize that this is met with resistance by some who are concerned about the preserving the purity
of diverse gene pools, captive breeding and reintroduction will not replace habitat improvement plans as a
means of recovering self-sustaining populations, but it will greatly improve the odds of success. And, it
may prevent the extraordinary expense of excessive habitat restoration.

"Whole Farm/Ranch Plans" and "Safe-Haven Agreements"

Let me turn to the tools that are needed to realize these goals. NASD A is one of the national agricultural
organizations proposing just such a voluntary, incentive-based partnership. We support the concept of
voluntary "total resource management plan" for farmers and ranchers. As proposed by NASDA, these
whole farm and ranch resource plans — which could include soil erosion management, crop nutrient
management, integrated pest management, animal waste management, water quality goals, range
management, wetlands management, and species habitat management — will provide the technical and
financial assistance necessary for farmers and ranchers to voluntarily enhance their resources and provide
improved wildlife habitat. Such plans will allow fanners and ranchers to act rather than react, providing
better habitat for species before they become threatened or endangered.

135

These plans would address multiple species habitat conservation on private land in a voluntary fashion and
approval of such a plan should give landowners the certainty they would be in compliance with provisions
of the Endangered Species Act. We strongly encourage this Task Force to include language in the
reauthorization of the Endangered Species Act that would recognize an approved whole farm or ranch
natural resource plan, and its implementation as a compliance mechanism for the Endangered Species Act.
This is a compatible approach to that taken by the House when it recently passed H.R. 961, a bill to
reauthorize the Clean Water Act (CWA). H.R. 961 provided that a fanner or rancher who develops and
implements a whole form or ranch natural resource management plan will be in compliance with the CWA.

We also support the concept of a "safe-haven" agreement. Such an agreement would allow designated state
agencies to enter into voluntary, pre-listing agreements with landowners to assure habitat conservation of
candidate species. A landowner with such a plan to address the needs of habitat conservation would not face
additional obligations under the Endangered Species Act if the candidate species, or another unforeseen
species, were to be listed at a later time.

This concept, which is very similar to the "No Surprises" policy and the "Voluntary Incentives for
Landowners" outlined by the Secretary of Interior in March, 1995, would defuse the fears that many
landowners have about voluntarily creating wetlands or wildlife habitat on their farms. In many cases,
fanners who would prefer to enhance wildlife habitat resist doing so out of fear of the Endangered Species
Act. They realize that the arrival of an endangered species on their property can trigger costly regulatory
procedures and severely limit their options for using their land. "Safe-haven" and "whole farm/ranch
plans" language in the reauthorization would remove those fears, and offer safety and certainty not only for
imperiled species but also for property owners.

Cost EFFECTivE>fEss

In this era of limited federal resources species listing and designation of critical habitat should take into
consideration the cost-effectiveness and the probability of success of a recovery program. It will be
increasingly important to insist that recovery programs have a high probability of success before investing
scarce resources in them. This may mean a return to a "triage" approach that first addresses the neediest
species with the greatest probability of recovery. This approach will be necessary as tax dollars are
stretched to cover other crucial societal needs. Common sense dictates that in a era when we are considering
maximizing effectiveness in all government programs, we must also examine the social and economic
impacts of listing endangered species.

We should avoid duplication between state and federal recovery efforts by streamlining ESA regulations:
1) for the listing of species; 2) for the designation of critical habitat; 3) for recovery programs; and, 4) for
delisting species based on clearly defined recovery goals that are specified at the begiiming of the recovery
effort.

REAUTHORIZATION OF THE ESA

In addition to specific language on whole farm and ranch natural resource management plans and "safe-
haven" agreements mentioned above, the following should be considered when reauthorizing the Act.

• The reauthorization should tighten the listing process to require petitioners to have a greater burden

of proof showing that the listing is needed. The requirement of "substantial information" needs to
be defined more comprehensively and reviewed by third-party peers to make sure that an adequate,
scientifically-defensible argument exists for listing a species. If information exists that contradicts
the need for listing, that information should receive equal analysis and peer review in the listing
process.

136

• A great deal of confusion, controversy and expense has arisen from language in the Endangered
Species Act that does not define "species" and "subspecies" and "population" with the generally
accepted definitions used by biologists (CRS Report 92-944 ENR, Dec. 15, 1992). It is particularly
important that "subspecies" be differentiated from "populations" in the language of the law so that
arbitrary and inconsistent interpretations are not made when listing species. While it is important
to protect species, it is not feasible to protect each discrete population of a subspecies.

Critical habitat should be limited to the area where there is a realistic possibility of recovering the
species rather than requiring that the entire historic range be included. This often jeopardizes
existing or ftiture private land uses. Listing of species should be delayed until realistic critical
habitat has been designated for recovery purposes.

The reauthorization of the Act should allow the Secretary of Interior to defer the recovery of species
to the states if the states have recovery programs in place to conserve the appropriate habitat. State
programs, approved by the Secretary of Interior, should serve as a reasonable and prudent
alternative for Section 7 consultations on federal actions.

• Recovery plans should have clearly defined goals with measurable objectives. Adaptive management
is desirable in that it allows recovery programs to adjust to the unpredictable biological responses
to habitat modification. However, sole reliance on adaptive management can result in disputes
among scientists as to what constitutes sufficient progress and successful recovery. Agreed upon
goals should be set at the outset, and adaptive management should be used to reach them.

Delisting of recovered species should occur promptly after recovery goals are met.

Conclusion

In closing, the reauthorization bill should stress voluntary cooperation within the structure of the
Endangered Species Act to meet its goals. There is good reason for that view. In December, 1994, the
United Stated General Accounting Office published "Endangered Species — Information on Species
Protection on Non-federal Lands." The report points out that the predominant number of species protected
under the ESA have the major share of their habitat on nonfederal lands. Specifically, of the 781 listed
species for which the Service was responsible as of May, 1993, 712 — over 90 percent — have habitat on
nonfederal land.

It is clear to me that the federal government simply does not have the resources to continue to force those
state, tribal, and local governments, and private landowners into compliance or to hold public projects
hostage while species protection programs proceed at a snail's pace. If the Act is to be effective and to
realize its goal of recovering species and restoring habitat, it must enlist landowners as active partners.

137

STATEMENT OF DANIEL SIMBERLOFF, ROBERT 0. LAWTON
DISTINGUISHED PROFESSOR OF BIOLOGICAL SCIENCE, FLORIDA STATE
UNIVERSITY, TALLAHASSEE, FLORIDA MAY 25, 1995

Mr. Chairman and other members of the committee, I am
grateful for the opportunity to discuss scientific issues
regarding protection of threatened and endangered species.

THE PROBLEM

Currently 728 species of animals and vascular plants are
listed as Endangered or Threatened under the Endangered
Species Act. Most of these are threatened by destruction of
their habitat, mirroring the trend worldwide. For example,
67% of all threatened vertebrates are threatened by habitat
destruction (Prescott-Allen and Prescott-Allen 1978), while
90% of all threatened freshwater fishes in North America are
threatened by habitat destruction (Wilson 1992). The second
greatest cause of imperilment is the impact of introduced
species, and the greatest impact of these species is that
they change the habitat (U.S. Congress, O.T.A. 1993). So
habitat destruction is the key to the crisis of species loss.

And it is, a crisis. Even though species have gone
extinct throughout the history of life, they are doing so at
about 100 times historic rates for well-studied groups like
birds and mammals (Groombridge 1992) . Just in the last 3
centuries there have been about 58 mammal extinctions, 115
bird extinctions, and at least 191 mollusc extinctions, and
most of these took place within the last century. And these
are of particularly well -studied groups in which the species
are often widespread. For other kinds of organisms, there is
every reason to believe that even more species have gone
extinct, in some instances without our ever having studied
them. The main reason we can say this with some certainty is
ecology's oldest law, the species -area relationship, an
empirical law which says that, on average, about half the
species in a site are lost for every 90% reduction in area
(Simberloff 1988). So, unless the unstudied species fail to
conform to a relationship that every well -studied group of
species obeys, we can extrapolate from known amounts of
habitat destruction to say that the number of extinctions
occurring is several times the documented number for poorly
studied groups or regions.

The problem is acute in the United States: just in the
last century we have lost 18 bird species (Ehrlich et al.
1992), 17 freshwater fish species (Miller et al. 1989), and
11 freshwater mussel species (Wells et al. 1983), as well as
over 200 plant species (Wilson 1992). And currently about

138

22% of our vertebrates, 31% of our plants, and 60% of our
freshwater mussels are critically imperilled (N.H. D.C.N.
1993). These are staggering percentages. The fact that most
of these species are not listed under the Endangered Species
Act simply reflects the delay in doing the requisite studies
and paperwork.

HOW TO SAVE THESE SPECIES

1. What science can offer

The science of conservation biology has matured rapidly,
particularly with the recognition that genetics and refuge
design play key roles in maintaining species (Simberloff
1988). It has a large professional organization, the Society
for Conservation Biology, which publishes a widely respected
journal (Conservation Biology) . while two other international
journals (Biological Conservation and Biodiversity and
Conservation) also deal with the full gamut of conservation
science issues. Conservation biology has developed in
typical cyclical scientific fashion by consideration of many
ideas, rejection of those that did not fit the data, and use
of the data to form better ideas, which in turn were tested,
and the entire cycle started anew. A new textbook (Meffe and
Carroll 1994) summarizes the impressive achievements of
conservation biologists in determining causes of endangerment
and extinction and various ways to deal with these phenomena.

However, I have occasionally heard conservation
biologists unfairly blamed for our extinction crisis, on the
grounds that they do not know how to save endangered species
and ecosystems. Actually, they do know how to save
endangered species and ecosystems, but the assigned task is
never how to conserve a species or ecosystem. Rather, it is
how to save a species but at the same time preserve certain
human enterprises at a certain level. The considerations are
predominantly economic, political, and sociological, not
scientific. Conservation biologists are asked what is the
minimum size of a population or of an ecosystem that can
possibly survive, and are asked to determine such things very
quickly, often in a few months or, at most, two years. Such
"minimalism" is the subtext for most conservation decisions;
small wonder that conservation biologists are seen as
unsuccessful! If physicians were forced to develop
treatments within a few months, then give the absolute
minimum amount of any treatment or pharmaceutical consistent
with survival or recovery of their patients, their failure
rate would doubtless increase and their recommendations would
be more debatable. Yet medicine would not be a poorer
science because of different demands placed on it.

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Conservation science is not a chief culprit in the extinction

crisis.

2. The critical role of habitat

Because habitat destruction is the main cause of loss and
imperilment of species, it comes as no surprise that saving
them will require determination and protection of their
critical habitat. The specific habitat requirements of each
species are often subtle, but sufficient study always reveals
them, and most species simply cannot be maintained outside
their habitat. Fortunately, the habitat requirements of many
species are similar enough that large groups of species can
be maintained together in the same habitat.

Sufficient habitat conservation will require many
partnerships among federal, state, and private landowners,
because only 50% of federally listed species occur on federal
lands (N.H. D.C.N. 1993). As just observed, many listed and
candidate species occur in clusters because they have similar
habitats, so that saving particular waterbodies and tracts of
land can save numerous species simultaneously.

3. The phenomenon of "death from a thousand cuts"

The cumulative impact of numerous small losses of
habitat, no one of which would appear to be the single loss
that pushes a species irrevocably on the path to extinction,
can be deadly (Odum 1982, Beanlands et al. 1986). This fact
is increasingly evident as conservation biologists have come
to understand that some species are structured as
metapopulations , groups of populations occupying discrete
sites, each occasionally going extinct locally, all loosely
united by occasional movement of individuals between them
(Hanski and Gilpin 1991) . When the occupied sites become too
isolated, movement is insufficient to compensate for ongoing
local extinction and the entire metapopulation collapses -
species extinction ensues. The fact that some species are
structured as metapopulations means that even empty but
suitable sites are critical to the maintenance of many
species (e.g.. Lande 1988).

4. Captive breeding can play at most a very minor role.

Captive breeding will not be of much help in dealing with
the massive threat of extinction. For one thing, it is far
too expensive; at most 900 terrestrial vertebrates (of ca.
23,000 worldwide) could be maintained this way in all the
world's zoos, and even this number would require dramatic
increases in zoo research and funding (Conway 1988) .

140

Invertebrates and plants, which have far more species,
present similar problems. Further, any attempt to maintain a
substantial fraction of our species by captive propagation in
order to allow continued habitat destruction will exacerbate
the problem, as an ever- increasing number of species will
require this assistance. But the most insidious fault with
this solution is that continued captive propagation
inevitably entrains natural selection for genotypes that are
ill-adapted to life outside the propagation facility. In
other words, the species evolve to be unsuited to nature.
There are already numerous species in this bind, which must
be maintained in parks and zoos; some of these species, like
the European bison (or wisent) , are large animals requiring
massive amounts of food and space.

Further, any attempt to augment dwindling natural
populations with captive-reared individuals carries
substantial threats. Numerous populations of salmonid fishes
that are highly adapted to local environments have been
threatened or eliminated by interbreeding with hatchery-
reared fishes (Allendorf and Waples 1995). Some of the lost
traits were highly specific movement tendencies that allowed
fishes to find the proper sites for spawning, and others were
characteristics that simply make individuals more fit
generally. In fact, a pervasive problem with interbreeding
of individuals from nature and stocks reared in captivity, in
both plants and animals, is "outbreeding depression," in
which fitness of offspring and later generations declines
because of the break-up of highly coadapted gene complexes
(Simberloff 1988). In some fishes, such as the Coho salmon,
the widespread use of hatchery stocks has had the perverse
effect of causing entire species to evolve away from the
traits prized for sport fishing and towards smaller and much
less aggressive individuals (Gross 1991).

5. List species based on population trends, not just sizes

For most of the species that have been listed under the
Endangered Species Act, population sizes were already quite
low - they averaged ca. 1000 individuals for animals and ca.
100 individuals for plants (Wilcove et al. 1993) . A very
small number of individuals automatically puts a species at
risk of extinction from numerous forces (Simberloff 1988),
both ecological and genetic. Further, many species have gone
extinct rapidly after their apparently substantial
populations declined monotonically , for the most part before
anyone noticed; all it takes for an apparently healthy
species to be among the "living dead" is for average birth
rate to be even slightly less than average death rate. And
quite often, adult individuals of a species can survive but

141

breeding is rare or non-existent. In such a case, one would
not see unusual death rates, and one might even see an
apparently healthy population, but absence of recruitment has
doomed the species. This phenomenon could be particularly
dangerous in long-lived species; it would take years to know
that there is an inexorable downward trend. Also, for many
species, the real threats occur only episodically; most of
the time populations are more than large enough to put them
out of danger, but occasional "ecological crunches," caused
by a severe winter, a hurricane, or other unpredictable
events threaten their existence (Wiens 1989).

In short, it is impossible to tell for many species if
they are on a course to extinction without demographic
studies (Schemske et al. 1994), and such studies require
years of monitoring, particularly for long-lived species.
Even when there are many populations of a species, without
intensive study of reproduction, mortality, and dispersal,
one cannot be certain that a species' existence is not
precarious, or even which populations are crucial to its
existence. One development of the growing understanding of
metapopulation structure is that some metapopulations
comprise a few source populations, which produce most of the
individuals that maintain the species, and many sink
populations, which, though they may have many individuals,
are irrelevant to population persistence (Pulliam 1988) . One
cannot determine which populations are sources and which are
sinks without extended demographic research.

In sum, to determine whether a species is on a course
towards extinction, we must study population trends. We know
exactly how to do this, but it is not a short-term process.

6. Beware of crucial species interactions

In innumerable instances, one or several species depend
utterly on another species (e.g. Meffe and Carroll 1994) , and
we cannot determine these dependencies without exhaustive
study. We know how to conduct such research, but it is
detailed and time-consuming. Often we discover the crucial
role of some apparently rare and insignificant species
inadvertently, when we lose it. The general concept of the
keystone species (Paine 1969) is relevant. A key plant
pollinator or disperser may play this role, for example.
Often a predator or parasite controls a species that would
otherwise completely dominate space, outcompeting many other
species. Remove the predator or parasite and the formerly
suppressed species becomes dominant, driving other species at
least locally extinct.

142

There is a tradition of excellent, meticulous
experimental research that detects these interspecific
relationships and the keystone role played by particular
species. This is expensive and time-consuming research, but
there is no cheap shortcut available.

REFERENCES

Allendorf, F.W. , andR.S. Waples. 1995. Conservation and
genetics of salmonid fishes. In press in J. Avise and
J. Hamrick (eds.). Conservation Genetics: Case Histories
from Nature.

Beanlands, G.E. , et al. 1986. Cumulative Environmental
Effects: A Binational Perspective. Ottawa: Canadian
Environmental Assessment Research Council, and
Washington, D.C.: National Research Council.

Conway, W. 1988. Can technology aid species preservation?
Pp. 263-268 in E.O. Wilson (ed.). Biodiversity.
Washington, D.C.: National Academy Press.

Ehrlich, P.R. , D.S. Dobkin, and D. Wheye. 1992. Birds in
Jeopardy. Stanford, California: Stanford Univ. Press.

Groombridge, B. 1992. Global Biodiversity. Status of the
Earth's Living Resources . London: Chapman 6e Hall.

Gross, M.R. 1991. Salmon breeding behavior and life history
evolution in changing environments. Ecology 72:1180-1186.

Hanski , I., and M.E. Gilpin. 1991. Metapopulation dynamics:

brief history and conceptual domain. Biol. J. Linn.
Soc. 42:3-16.

Lande . R. 1983. Demographic models of the northern spotted
owl (Strix occidentalis caurina) . Oecologia 75:601-607.

Meffe, G.K., and C.R. Carroll. 1994. Principles of

Conservation Biology. Sunderland, Massachusetts: Sinauer.

Miller, R.R. , J.D. Williams, andJ.E. Williams. 1989.

E:-:tinctions of North American fishes during the past
century. Fisheries 14:22-38.

Natural Heritage Data Center Network. 1993. Perspectives on
Species Imperilment. Arlington, Va. : The Nature
Conservancy.

Odum, W.E. 1982. Environmental degradation and the tyranny

143

of small decisions. BioScience 32:728-729.

Paine, R.T. 1969. A note on trophic complexity and community
stability. Amer. Natur. 103:91-93.

Prescott-Allen, R. , and C. Prescott-Allen. 1978. Sourcebook
for a World Conservation Strategy: Threatened
Vertebrates . General Assembly Paper (United Nations
Doc. GA 78110).

Pulliam, H.R. 1988. Sources, sinks, and population
regulation. Amer. Natur. 132:652-661.

Schemske, D.W., B.C. Husband, M.H. Ruckelshaus , C.

Goodwillie, I. Parker, andJ.G. Bishop. 1994. Evaluating
the approaches to conservation of rare and endangered
plants. Ecology 75:584-606.

Simberloff, D. 1988. The contribution of population and
community biology to conservation science. Annu. Rev.
Ecol. Syst. 19:473-511.

U.S. Congress, Office of Technology Assessment. 1993. Harmful
Non- indigenous Species in the United States . Washington,
D.C.: U.S. Government Printing Office.

Wells, S.M., R.M. Pyle , andN.M. Collins. 1983. The
I.U.C.N. Invertebrate Red Data Book. Gland,
Switzerland, and Cambridge: International Union for the
Conservation of Nature.

Wiens, J. 1989. The Ecoloev of Bird Communities. Vol. 2.
Cambridge: Cambridge University Press.

Wilcove, D.S., M. McMillan, andK.C. Winston. 1993. What

exactly is an endangered species? An analysis of the U.S.
endangered species list: 1985-1991.

Wilson, E.O. 1992. The Diversity of Life. Cambridge, Mass.:
Harvard University Press.

144

POSSIBLE IMPLICATIONS FROM ESTIMATING TROPICAL EXTINCTIONS FOR
BIODIVERSITY POLICY

Patrick Kangas

Natural Resources Management Program

University of Maryland

College Park, Maryland 20742

Introduction

Loss of biodiversity due to human actions has become one of
the critical environmental issues facing governmental and non-
governmental organizations in the United States and other
countries. Biodiversity is a natural resource and an endowment
of a country and its loss through extinction results in a decline
in natural capital that can not be restored. Thus, the challenge
to develop effective public policies for controlling loss of
biodiversity is especially important because of the irreversible
nature of the extinction process.

Biodiversity policy has focused on species protection but
there is growing recognition that other levels or types of
biodiversity, ranging from genes to landscapes, also require
protection. Species are a fundamental unit of biodiversity and
can be monitored by population counts. Knowledge of species
extinction rates is needed for policy making but extinction is
difficult to quantify for a number reasons such as the large
spatial scale of the process and the lack of taxonomists who can
identify species. The purpose of this paper is to review some
problems with estimating tropical extinctions and to suggest
implications for biodiversity policy.

Estimating Tropical Extinctions

The Tropics is characterized by high biodiversity and fast
growing human populations that threaten biodiversity through a
number of environmental impacts. Deforestation, which results in
loss of habitat for terrestrial species, is one of the most
serious impacts in forested regions of the Tropics. Several
early modelling efforts simulated growing population pressure and
deforestation in simple biodiversity models which predicted mass
extinction of tropical species might occur within a few decades
(Lovejoy 1980, Ehrlich and Ehrlich 1981) . These initial models
were appropriate since knowledge about tropical extinctions was
extremely limited. Although refinements in the early modelling
efforts suggested reduced extinction rates or at least more
caution in estimating tropical extinctions (Lugo 1988, Lugo et
al. 1993, Simberloff 1986, Wright 1987, Kangas 1986, 1987, 1991,
1992) , a belief developed in the general public that the tropical
mass extinction event was real and currently underway. This
belief is reflected in the literature and advertisements of
publishers, businesses and conservation organizations that

145

indicate extremely high extinction rates. For example, one
publisher states in an advertisement for a book on tropical
forests that "in the next 15 minutes, a plant or animal species
will become extinct". Another advertisement for conservation
fund raising notes that "half the species on earth will die
unless we act now. " These statements are exaggerations and they
are not based on the best scientific evidence. An issue of
concern is how these exaggerations will affect conservation
action. Several examples of political backlash to conservation
from exaggerations have occurred in Brazil (Kangas in press) and
more studies are needed on belief formation and scientific
credibility in these kinds of political issues of conservation.

Possible Implications for Biodiversity Policy

Although extinction rates are much higher in the Tropics
than in the United States, some similarities may exist (Schindler
1989) . There is a continuing need for more information on the
extinction process but public policy must be developed with the
best existing information. In the United States the Endangered
Species Act is the primary mechanism of biodiversity policy and
similar governmental regulations exist in tropical countries. As
these policy instruments evolve, it may be useful to build on
experiences in conservation from the Tropics and from the United
States. Three possible implications from the tropical experience
are listed below.

1) Much is known about United States biodiversity and its loss
due to human impact, compared to available information on the
Tropics. United States policy makers are obliged to take
advantage of this scientific knowledge to develop the most
effective biodiversity policy possible. Extinction rates have
not been exaggerated in the United States, as has happened in the
Tropics, and policy makers should continue to insist on high
levels of scientific input to the political process of policy
formation.

2) The high diversity of tropical species may require that
tropical countries move away from individual species as a focus
of biodiversity policy, as is the case with the United States
Endangered Species Act, to focus on larger scale unites of
biodiversity. Although it may be possible to focus on individual
species in the United States, because of our greater knowledge
and resources, perhaps new directions of conservation policy
should be implemented that give strong consideration to the
landscape level of biodiversity along with the species level.

3) Some of the scientific community has shifted away from the
difficult problem of estimating tropical extinctions to consider
ways of achieving sustainable development in the Tropics. This
represents a change in approach to conservation from the polarity
of "environment vs. economy", which has come to dominate United
States biodiversity policy. An alternative is to search for
innovative systems of man and nature in which biodiversity is

146

demonstrated to have high value. Perhaps this approach should be
an explicit goal for future biodiversity policy formation in the
United States.

In conclusion, the Endangered Species Act has many problems
(Harris and Frederick 1991, Kohm 1991, Mann and Plummer 1995) but
it remains as a solid foundation on which to build biodiversity
policy. Its strengths can be capitalized on, along with new
ideas from conservation biology, to develop effective and
adaptive biodiversity policy for the future.

Literature Cited

Ehrlich, P. and A. Ehrlich. 1981. Extinction. Ballantine Books,
New York .

Harris, L. D. and P. C. Frederick. 1991. The role of the
Endangered Species Act in the conservation of biological
diversity: An assessment. In: J. Cairns, Jr. and T. V. Crawford
(Editors), Integrated Environmental Management. Lewis Publishers,
Chelsea, Michigan, pp. 99-117.

Heywood, V. H. and S. N. Stuart. 1992. Species extinctions in
tropical forests. In: T. C. Whitmore and J. A. Sayer (Editors).
Tropical Deforestation and Species Extinction. Chapman and Hall,
London . pp . 91-117.

Kangas, P. 1986. A method for predicting extinction rates due to
deforestation in tropical life zones. Abstract. IV International
Congress of Ecology Meeting Program: 194.

Kangas, P. 1987. On the use of species area curves to predict
extinctions. Bull. Ecol . Soc . Amer. 68:158-162.

Kangas, P. 1991. Macroscopic minimodels of deforestation and
diversity. Ecol. Modelling 57:277-294.

Kangas, P. 1992. Undiscovered species and the falsif lability of
the tropical mass extinction hypothesis. Bull. Ecol. Soc. Amer.
73 :124-125.

Kangas, P. in press. Tropical Sustainable Development and
Biodiversity. In: M. Reaka-Kudla and D. Wilson (Editors).
Biodiversity, From 1986 to the 21st Century.

Kohm, K. A. (Editor). 1991. Balancing on the Brink of Extinction.
Island Press, Washington, DC.

Lovejoy, T. E. 1980. A projection of species extinctions. In: G.
O. Barney (Study Director), The Global 2000 Report to the
President, 2. Council on Environmental Quality, U. S. Government
Printing Office, Washington, DC. pp. 329-331.

147

Lugo, A. E. 1988. Estimating reductions in diversity of tropical
forest species. In: E. O. Wilson (Editor), Biodiversity. National
Academy Press, Washington, DC. pp. 58-70.

Lugo, A. E., J. A. Parrotta and S. Brown. 1993. Loss in species
caused by tropical deforestation and their recovery through
management. AMBIO 22:106-109.

Mann, C. C. and M. L. Plummer. 1995. Noah's Choice, The Future of
Endangered Species. Alfred A. Knopf, New York.

Schindler, D. W. 1989. Biotic impoverishment at home and abroad.
BioScience 39:426.

Simberloff, D. 1986. Are we on the verge of a mass extinction in
tropical rain forests? In: D. K. Elliott (Editor) , Dynamics of
Extinction. Wiley, New York. pp. 165-180.

Wright, D. H. 1987. Estimating human effects on global
extinction. Int. J. Biometeor. 31:293-299.

148

Testimony on The Endangered Species Act

Terry L. Maple, Ph.D.

May 25, 1995

149

Testimony on the Endangered Species Act

Terry L. Maple, Ph.D. Professor of Psychology. Georgia Institute of Technology, and
Chief Executive Officer. Zoo Atlanta.
25 May. 1995

I am truly grateful for the opportunity to discuss the Endangered Species Act
and the reasons that I support its reauthorization. For twenty years I have been a
college professor, teaching courses in 'Environmental Psychology," and "Animal
Behavior". I have had the pleasure of teaching both undergraduate and graduate
students at the University of the Pacific, the University of California at Davis, Emory
University, and Georgia Tech. For the past eleven years I have been employed as the
Chief Executive of Zoo Atlanta. While I have spent a fair amount of time as an 'ivory
tower theoretician," my recent experiences have required that I meet a payroll, balance
a budget, plan strategically, set priorities, recruit and manage talent, market a product,
and make hard business decisions daily. In my widlife travels. I have enjoyed pristine
wilderness, and I have suffered within the most degraded, dehumanized landscapes.
The contrast is instructive. More than ever, we need to protect our worid heritage of
wildlife ecosystems. Zoos and Aquariums are institutions that represent the interests
of wildlife and the millions of people worldwide who value and enjoy it.

I manage one of the worid' s leading zoos, an enterprise whose employees wori<
every day to actively "share the joy and wonder of wildlife." Neariy a million people
will visit Zoo Atlanta this year, while some 40.000 households are paid members in
our local support group, the "Friends of Zoo Atlanta.' Our nonprofit corporation is
comprised of 1 1 5 full time staff, more than 1 .000 trained volunteers, and 1 50 seasonal
employees. Our 1995 operating budget exceeds $9 million. Zoo Atlanta is a culural
institution in the business of managing, propagating, exhibiting, and conserving
wildlife in zoos, parks, and reserves. We aim to educate, inspire, and provide

150

enjoyment and recreation for cur visitors. We are essentiaiiy a business patronized by
families.

Zoo Atlanta has been acknowledged as one of America's most successful
public/private partnerships. The zoo receives no operating subsidies from local or
regional governments, although $16 million in bonds were provided by the City of
Atlanta and Fulton County in 1985. and a capital gift of $2.5 million was granted by the
state in 1995. We are pro-business, and therefore a part of mainstream American life.
A corporate fund-raising campaign raised neariy $1 0 million this year. Privatization
has wor1<ed well for many of America's best zoos and aquariums.

I offer this background to demonstrate that a corporate orientation is not
Incompatible with the protection of wildlife and wildlife ecosystems. Our visitors and
our corporate donors consistently support our conservation programs and values.
Indeed, it is major reason for giving. They are partners in our continuing efforts to
educate our community about the importance of biodiversity and the permanance of
extinction. We work to ensure that our children and grandchildren will be able to
witness eagles, whales, gorillas, elephants, treefrogs and other living creatures in a
state of nature. We cannot be satisfied to preserve a few specimens in our zoos; we
are obligated to protect healthy populations within their range countries. It would be a
monumental tragedy if zoos and aquariums were to become the last refuge for
endangered species, and we cannot let this happen. Zoo animals should be
regarded as ambassadors for their wild kin. We are driven to save them for their own
sake, but we do it also because our community demands it.

It has been argued recently that we can relax our standards of protection
because many spedes now can be propagated in captive settings. Zoo and
aquarium professionals are experts on captive propagation. It is a helpful strategy,
but captive breeding is not a panacea for the protection of endangered species. It is
certainly true that zoos have mightily contributed to saving the American bison, and the
California Condor, to name a few. but many other species have proved far more
difficult to breed in the zoo. Moreover, the 1 70 accredited zoos and aquariums in

151

America do not have sufficient space or financial resources to manage multitudes of
endangered wildlife. The critical list is simply too long, and our techology is too
primitive.

We also recognize that reintroduction of captive-bred wildlife has proved far
more challenging than we expected, and it may be generations before habitat can be
sufficiently rehabilitated to accept the offspring of "rescued wildlife." We should not
make our stand in zoos; instead our first priority must be the preservation of wildlife
ecosystems. No zoo can protect and nurture mountain gorillas as effectively as the
Pare des Volcans in Rwanda In this part of the world turmoil surrounds this national
park, threatening its survival and the creatures within. But it is precisely within this
vulnerable ecosystem that our commitment to protection must be confirmed. There
are only 650 mountain gorillas left in the entire world. None of them reside in captivity.
Although it cannot be our first conservation priority, we will continue to improve our
technology, and do our best to breed rare species in our zoos and aquariums.

In operating zoos and aquariums in this country, we have learned that the
public wants to live in a "natural world, " a world abundant in a diversity of wildlife and
the ecosystems that support it. We have learned this by studying our customers, the
120 million Americans who visit zoos and aquariums annually. It is the mission of
zoos and aquariums to contribute to public education, conservation, science and
recreation. As zoo and aquarium professionals we strongly agree with the preamble
of the Endangered Species Act which recognizes that endangered wildlife and plants
are of "esthetic, ecological, educational, historical, recreational, and scientific value to
the Nation and its people."

The esteemed conservation biologist E.O Wilson has classified our natural
resources as "biological wealth." His words are compelling:

"Native species are a part of our heritage. They are venerable
almost beyond imagining, present on this land thousands to
millions of years before even the first native American arrived.

152

The average life span of a spedes. and its descendents
before . . . humanity was one million to
ten million years. Each species of animal, plant, and
microorganism is a masterpiece, assembled by vast
numbers of genetic mutations tested by natural selection
and fitted to a particular niche in the environment. Its genes
are a library of priceless genetic and ecological information,
available to us at no greater price than the effort to keep
the spedes alive.*

As we contemplate reauthorization of the Endangered Species Act. it may be
useful to consider the field experiences of Teddy Roosevelt, one of America's greatest
conservatists. In his acdaimed biography Edmund Moms (1979) wrote:

"For the first time he realized the true plight of the native American
quadrupeds, fleeing ever westward, in ever smaller numbers, from men
like himself. . . by 1887 the ravages . . . were plain to see. . .
Roosevelt was now in his twenty-ninth year, and the father of a
small son; if only for young Ted's sake, he must do something
to preserve the great game animals from extinction."

Fortunately, Roosevelt was a man of action. His legislative record at the state
and national level is a monument to his lifelong commitment toconservation. Clearly,
endangerment is not a new issue. In fact we have already lost an estimated 1 .5
percent of the estimated 100,000 recognized species of American wildlife since the
European colonization. Some 22 per cent are dassified as *on the brink of
extinction'. There is no disagreement among the world's sdentists that the pace of
spedes extinction is accelerating.

The protection of wildlife is never easy, but 1 believe that we can develop
•win/win" conservation strategies that will work for wildlife and for people. If we tinker
with the Endangered Spedes Act we may be able to improve it. but we must be careful

153

not to render it ineffective at a time when the pressure on wildlife resources is greater
than ever before. Responsible republicans and democrats have offered constructive
critidsm of the Act as it is cun-ently constituted. We can build on this if we also consult
our most trusted experts in wildlife biology and public policy. We should be careful not
to underestimate the risks of ignoring environmental problems. As Rodger Schlickeisen
(1995) recently observed:

'It is a rare politician who does not recognize and play to the
public's need to believe that America's combination of abundant
resources, technological ability, and entrepreneurial spirit can
solve all environmental problems before they inflict serious penalties."

In the zoo world, we have studiously avoided 'doomsday" educational themes,
and we should continue our efforts to objectively represent the environmental
challenges which surround us. Sadly, the dabate on the Endangered Species Act has
been characterized by acrimony and mistrust on both sides. Perhaps we need a new
scientific agency to examine and evaluate environmental issues. A National Institute
for the Environment, funded from both public and private sources, has been introduced
jn Congress. The idea is timely and worthy of careful consideration.

There is broad agreement that the Endangered Species Act must be based on
sound science, and that it must be flexible. As Speaker Gingrich has suggested, the
act will function better if it is incentive driven and not punitive. In the American
Southeast, the Georgia Pacific Company has engaged in logging while protecting the
habitat of endangered woodpeckers, demonstrating that industry and govemment can
successfully negotiate policies that will work for wildlife and people. Surely we are
capable of making the Endangered Species Act workable throughout the nation.

The Endangered Species Act has come to symbolize America's collective
commitment to wildlife conservation. We must further recognize that our nation is
widely regarded as a leader in global conservation. If our courage fails us, it will
surely affect the morale of our conservation partners in the developing worid. Like a

154

series of dominoes, wildlife protection could be toppled elsewhere. In a challenging
world economy, our problems cannot be resolved at the expense of our treasured
ecosystems. Indeed, if we do so, we are squandering biological wealth for transient,
short term gains. The esteemed biochemist Thomas Eisner (1994) reminds us that
"chemical prospecting" will continue to yield new medicines only if our sources are
sustainable:

"What beclouds chemical prospecting these days is the fact
that species are disappearing. Environmental destruction is
proceeding worldwide at an ever-increasing rate, with the result
that whole habitats, with much of their contained biotic wealth,
are being obliterated. Species are being lost faster than they
are being examined chemically'.

In our "World Zoo Conservation Strategy," published by the World Zoo
Organization in 1993. we have agreed that it is the task of zoos to heighten public and
political awareness about the interdependence of life (cf. Maple. 1993).- Our
collections of living animals will be used hereafter to tell the whole conservation story.
Zoos and aquariums are painfully aware of the fragile state of the earth's ecosystems.
We have dedicated our institutions to protecting them.

Like all good investments, it is advisable to think about conservation in the long
term. For too many years, we have ignored an expanding habitat deficit. We are
expending too much, and saving too little. If we should bankrupt our natural
resources, our heirs will never forgive us. Extinction, after all, is forever.

References

Eisner, T. Chemical Prospecting. A Global Imperative. Proceedings of the
American Philosophical Society. 1994. Vol. 138. No. 3. pp. 385-392.
Maple, T. 1993. Zoo Man. Atlanta, Longstreet Press.

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7
Morris, E. 1979. The Rise ofTheodore Roosevelt. New York, Ballentine.

Schlickeisen, R. Let's Not Ignorantly Debate the Endangered Species Act. The
Christian Science Monitor, March 10, 1995.

Wilson, E.O. America's Biological Wealth. Unpublished essay.

156

Statement of Nicholas Wheeler, Ph.D.

Senior Scientist, Taxol® Program

Weyerhaeuser Company

Submitted to the Record of
The U.S. House of Representatives

Natural Resources Committee
Endangered Species Act Task Force

May 25, 1995

Introduction

Mr. Chairman and members of the task force, Weyerhaeuser
Company appreciates the opportunity to provide comments on the
Endangered Species Act (ESA) to the House Natural Resources
Committee's Endangered Species Act Task Force, specifically
about our experience in growing yews for Taxol production.

I would like to begin my comments by providing a brief summary
of our company. Weyerhaeuser is an international forest products
company whose principal businesses are growing and harvesting
trees, and manufacturing, distributing and selhng forest products.

Weyerhaeuser owns and manages approximately 5.6 million acres
of timberland in the United States (2.8 million acres in the Pacific
Northwest and 2.8 million acres in the South).

We have been managing forestlands since 1900 and currently
support the largest private silvicultural and environmental
forestry research staff in the world.

Weyerhaeuser is committed to continuously improving our
performance as responsible stewards of the environmental quality
and economic value of the forests we manage.

While our forests are managed for the production of wood, our goal
is to protect, maintain or enhance other important environmental
values, such as plant genetic resources, soil productivity, water

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quality, fish and wildlife habitat, and other unique areas and
environmental values.

Weyerhaeuser and the ESA

On April 24th, Weyerhaeuser submitted testimony to this Task
Force on the Endangered Species Act. We said that based on our
years of research in wildlife and forestry, and our recent
experiences with the Habitat Conservation Plan (HCP) process, we
believe that the ESA can be improved to the benefit of both wildlife
and landowners. Specific improvements include:

• Making the HCP process more user-friendly by providing '•
certainty to landowners and reducing the time and cost
necessary to complete documentation.

• Providing landowners the option of moving away from the
current species-by-species HCP process to a habitat-based
approach for multiple species.

• Streamlining the consultation process to eliminate unnecessary
duplication.

• Clarify the responsibility of private landowners with respect to
"take."

Our testimony today focuses on how we applied years of expertise
derived from our forestry research to help solve a human health
problem. Our efforts in studying and growing yew trees for Taxol
production has reinforced our belief that private landowners be
allowed the flexibility to apply a variety of management
techniques.

Background

Taxol (paclitaxel) is considered by the National Cancer Institute
(NCI) to be one of the most important anti-cancer drugs to be
developed in the past 10-15 years. The molecule paclitaxel belongs

92-551 - 95

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to a group of closely related chemicals called taxanes, extracted
from the bark and other plant tissues of yew trees (Taxus species).
Taxol, the drug formulation of paclitaxel, has been approved by the
U.S. Food and Drug Administration (FDA) for the treatment of
patients with advanced ovarian and metastatic breast cancers.
Taxol is being evaluated for the treatment of many other cancer
types and clinical results are promising for several, including lung,
head and neck cancers.

Taxol was discovered in the early 1960's during the initial plant
surveys conducted by the Natural Products Branch of the N.CI. Of
35,000 plant extracts screened in that survey, Taxol is the only
anti-cancer agent that subsequently came to market.

Due in part to the initial difficulty of obtaining, extracting and
purifying paclitaxel, development of the drug was impeded for
several years. Interest in development was rekindled in 1979
when it was discovered the compound had a unique mode of action
in arresting cell division.

Clinical trials were initiated in 1983 and remain on-going today for
a number of tumor types. The limited supply of paclitaxel
adversely affected the speed at which clinical trials could proceed.
The harvest of bark from the Pacific yew lagged behind
expectations and needs during the early years of clinical
evaluations.

In 1991, following a competitive bidding process, Bristol-Myers
Squibb was awarded a Cooperative Research and Development
Agreement (CRADA) from the NCI to further develop and bring
Taxol to market. In late December, 1992, Taxol was approved by
the U.S. FDA for treatment of patients with ovarian cancer whose
first-line or subsequent chemotherapy had failed, and in early 1994
Taxol was approved for use in the treatment of metastatic breast
cancer.

Prior to December, 1994, the bark of the Pacific yew, a forest tree
species native to the U.S. Pacific Northwest and British Columbia,
was the only approved source of Taxol for clinical trials or cancer
therapy. Because of its limited occurrence and slow growth rates,

159

much concern was expressed over the environmental impacts
associated with its harvest and as an adequate source for the long-
term.

Harvesting requires stripping the bark from yew trees felled either
for the specific purpose of Taxol production, or as a bi-product of
large-scale harvests of the primary timber species, such as
Douglas-fir, western hemlock and western red cedar. While the
Pacific yew is not currently an endangered species, continued
large-scale harvests of bark could conceivably reach the limits of
the resource and have a negative impact on the environment.
Consequently, one of the requirements of Bristol-Myers Squibb as
stipulated in the CRADA was to identify and develop alternative
sources of paclitaxel. '*

Several possible alternative sources, including foliage from other
wild Taxus species, biomass from cultivated sources, semi-
synthesis, cell culture and/or total synthesis have been identified
and are receiving considerable attention. Of these, semi-synthesis
and biomass from cultivated sources appear most promising as
cost-effective alternatives. Semi-synthesis requires taxane
precursors derived from Taxus plants, whether from cultivated or
wild sources.

Even though several economic alternatives to the harvest of Pacific
yew exist, it is anticipated by some that there will be a continuing
demand for the bark of the Pacific yew by organizations seeking to
market generic Taxol products.

Weverhaeuser's Taxol Program and Goals

Of the supply alternatives cited above, Weyerhaeuser has focused
it's attention on nursery cultivation, one of the Weyerhaeuser's
core businesses and areas of expertise. The goal of our Taxol
program is to provide, through intensive cultivation of Taxus
biomass, 1) a long term, reliable, economic supply of paclitaxel;
and 2) other desired taxane precursors for semi-synthetic
production of Taxol.

160

Weyerhaeuser's Taxol Program began in 1987 when it was
contacted by NCI's Natural Products Branch as a prospective
contractor to supply Pacific yew bark., Although we own and
manage 2.8 million acres of private timberland in the Pacific
Northwest, Weyerhaeuser has a relatively few Pacific yew trees on
this land.

Recognizing the limited availability of yews throughout the region,
and the potential negative impact of long-term harvest on the
species, Weyerhaeuser proposed intensive cultivation as a supply
alternative. It was our belief that cultivation of yews in a farest
nursery setting would provide for a more reliable, long-term and
environmentally sound solution to the supply issue.

To achieve this, Weyerhaeuser established a Pacific yew
population / genetics study in 1987-88. This was followed by the
establishment of an aggressive research and production program.
This program was supported by early research results from the
genetics study, from our extensive experience within the company
in tree improvement, plant physiology and propagation research,
and from our large-scale forest tree nursery operations. Our
experience in these areas has allowed us to rapidly develop a
comprehensive cultivation program for the production of yew trees
for Taxol

Since 1991, Weyerhaeuser has had an exclusive Taxus biomass
supply relationship with Bristol-Myers Squibb. However, recent
changes in that relationship retains Bristol-Myers Squibb as a
customer and allows Weyerhaeuser to grow taxane-containing
biomass for other customers. These developing changes provide
both Weyerhaeuser and Bristol-Myers Squibb new opportunities in
improving their strategic directions.

Weyerhaeuser's program is focused on both research and
production activities:

1. Research Activities

• identify the best genetic material (species or varieties)
to use in a domestic cultivation system

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• determine paclitaxel (taxane) content as a function of
the various plant tissues for different varieties (bark,
needles, etc.)

• determine the effects of harvest time and cultural
practices on yield

• assist in developing extraction technologies for various
plant tissues

• establish long-term genetic improvement efforts

2. Production Activities

• determine how to grow different genetic sources of yew
quickly

• determine the best propagation practices (i.e.,
vegetative, seedling, etc.) "*

• evaluate various cultivation alternatives (nurseries,
hedges, plantations, etc.)

• determine the economics of domestic cultivation

Following the success of this program, Weyerhaeuser looks
forward to additional opportunities where our technology and
resource base can be applied in the production of other medicinal,
pharmaceutical or other natural-product derived compounds or
products.

Summary

Since the start of our yew-Taxol program, Weyerhaeuser has
grown more than 12 million yew trees at five forest tree nurseries
in the Pacific Northwest.

In the search for alternative sources of Taxol, we believe that
intensive cultivation of selected Taxus genotypes offers the best
long-term solution. We believe that with the strong integration of
research and production, and based on the positive results
experienced to date, Weyerhaeuser can achieve its goals of 1)
providing a long-term reliable and economic source of paclitaxel, or
other taxanes of choice, 2) contributing significantly to the
expected increasing demands for Taxol throughout the decade and
beyond, and 3) contributing to the conservation of world-wide

162

natural Taxus populations through the use of a renewable,
sustainable, cultivated Taxus resource, managed under strict
operational controls.

Weyerhaeuser's success with cultivating yew and developing
alternative ways to produce raw material for Taxol is but one
example of how landowners can respond to society's needs. We
have been able to lend our considerable expertise gained from
decades of research and management of our private forestlands to
this important effort. For the same reasons, the company has been
able to develop and implement solutions to concerns over wildlife
habitat. And the key to being able to apply these types of solutions
has been the ability to be flexible in our management of private
forestlands and to be responsive to changes in markets and '*
external conditions.

163

TESTIMONY BEFORE THE NATURAL RESOURCES COMMITTEE OF
THE U. S. HOUSE OF REPRESENTATIVES

Thursday, May 25, 1995

Dr. David G. Cameron
2004 Centennial Drive
Great Falls, MT 59404

(406) 453-5378

164

SUBJECT: Written submission by Dr. David Cameron to
accompany oral testimony at the hearing of the Natural Resources
Committee of the U. S. House of Representatives to be held
Thursday, May 25, 1995.

COMMITTEE MEMBERS AND VISITORS:

I speak today wearing two hats. I am a recently retired
professor of biology and genetics at Montana State University
with degrees from Princeton and Stanford Universities. I hold a
lifelong interest in wildlife genetics and the hereditary
consequences of adaptation and speciation. I am also a third
generation Montana livestockman having managed for twenty years a
large family cattle and sheep operation. These two hats, that of
the theoretical/idealistic biologist and the market-driven
rancher have made me slightly suspect wherever I go.

As a professional biologist, I, along with my students and
colleagues, have published studies on populations of diverse taxa
in natural habitats in the West — usually at the request of
Federal or State agencies. Often their concern has been what
their obligations were under the mandates of the Endangered
Species Act. We tried to provide a scientific basis for their
decision making.

My m.ain purpose in coming here is not to dwell on the
scientific problems of the ESA, but to relate my own frustrating
experience with the Act as a rancher attempting to perform what
would normally be considered a good deed. The tradition in my
family has been to give wildlife a break wherever possible. My
father reintroduced pronghorn antelope to our region four decades

165

ago, and our region is renown for its herds of elk and deer, its
mountain lions, coyotes, bears and soon, God help us, wolves.
Few complain.

HOW THE CURRENT ESA INTERFERES WITH GOOD DEEDS:
Hoping to continue in the family tradition of ecological
reconstructive activity, I implored upon my colleague. Dr. Calvin
Kaya, a fish biologist with special interest in the Montana
grayling, to examine the tributaries of our trout stream for
sites suitable for the reintroduction of grayling — a native
species which for some reason has disappeared from much of its
former habitat, including our ranch. A suitable site was found,
and plans were made to do what was deemed necessary. Volunteer
help was available, and we were about to proceed when word
arrived that the Federal Wildlife Service was seriously
considering listing the Montana grayling as an endangered
species. At this point people knowledgeable about the heavy-
handed approach of the Feds counseled me to forget the
experiment. We might lose the right to graze our pastures. My
recollections of the horror stories abundant in stockmen's
journals about the hazards of hosting an endangered species
didn't help , and I sadly bowed out. It seemed a good deed would
probably be punished, and life had sufficient complications
without Federal Agents giving orders.

How many times has my story been repeated? How often has
the ESA impeded biological restoration? I think more often than
we want to believe. Reasonable property owners are frightened
and angry at you, the government, for managing with brick bats.

166

Why does the hosting of a rare and troubled creature have to be a
threat to their livelihood rather than a source of pride and
pleasure? IT LOESN'T. It is clearly unfair to make a few
individuals both the scapegoats and the bearers of stress because
of forces beyond their control and perpetrated by society at
large. We must form partnerships between groups who now fight
for CONTROL rather than results.

Habitats vary continuously through space and time. Their
management is a constant challenge to those, the local private
and public managers, who know them best.

WHAT CAN WE DO?

1. We must seek ways to enlist this local knowledge and
form the management groups necessary to find common ground and
innovative solutions. The next ESA must be an ENABLING act
opening doors of opportunity and marshaling latent goodwill that
was stifled by the preceding act. The more local the solution,
the more likely it will work — you must believe that!

2. We cannot save every variety of every living thing. You
must allow the exercise of triage and spend money effectively.
Lavish expenditures on dubious acts turns off otherwise
sympathetic citizens.

3. We must put money into carrots not sticks. People
respond to incentives. For instance, ill-conceived tax
structures drive rational people to do socially undesirable acts.

4. You must convincingly remove from the new Act the
perception that there is an agenda beyond maintaining a healthful

167

environment. The apparent joy with which Federal Agents have
intruded into private lives of ranchers suggests to many a
political not a biological agenda.

5. PRACTICE WHAT YOU PREACH: One thing you can do is to
start managing your own showplaces in an appropriate way.
Yellowstone Park is a grazing disaster zone recognized as such by
professional range managers and ranchers. Biological diversity
seems to have a very low priority in the Department of Interior
as historical photos reveal the loss of willows, aspen,
cottonwoods, beaver, and assoicated biota due to elk and bison
having been allowed to ravage the park while cultivating
Brucellosis. A good example of ecosystem management is
demonstrated in South Africa's Kruger Park, and if applied in
Yellowstone, would go a long way in selling a conservation
program to the West.

As a professional biologist, I am alaxmed that political
correctness has superseded science in advice and council going to
the Hill. When the governing board of the Society of
Conservation Biology recommended to Interior that Conservation
Reserve Lands (CRP) should never be grazed, I realized the depths
of biowhoring taking place. A recommendation of a single
management plan for over 10 million acres of land is flawed —
whatever it may be.

I wish the Committee success in its deliberations and offer
you any help I can give. Thank you for your attention.

168

SAVING ENDANGERED SPECIES WITH HIGH-YIELD FARMS AND
FORESTS

by Dennis T. Averj'
Hudson Institute

Testimony before the Endangered Species Task Force of the US House
Committee on Resources, Washington, DC, May 25, 1995

Thank you for the opportunity to highlight the importance of using high-yield agriculture,
high-yield forestry and freer trade in natural resource products to save endangered species
by the thousands, in the US. and around the world

My name is Dennis T. Avery. I am a senior fellow and Director of Global Food Issues for
the Hudson Institute of Indianapolis. Prior to joining Hudson, I spent nine years as the
senior agricultural analyst in the U.S. Department of State In that career position, I was
responsible for assessing the foreign policy implications of food, agriculture and natural
resource policies worldwide. I have also served as a policy analyst for the U S
Department of Agriculture and for the National Advisory Commission on Food and Fiber.

I have written two books on global food and agriculture:

~ Global Food Progress, published in 1991, is an overview of the research, technologies
and government policies which have enabled us to feed twice as many people since 1951,
feed them better diets, and do it from essentially the same amount of land.

~ Saving the Planet With Pesticides and Plastic: The Environmental Triumph of
High-Yield Farming, has just been published, and I have furnished copies to the
committee members. It details the contributions which high-yield fanning and forestry
have made and should make in preserving millions of square miles of wildlife habitat,
preserving the species living on that habitat, saving billions of tons of soil from erosion,
and protecting billions of gallons of water — all while reducing human health risks. The
book also focuses on the danger of trapping even more of our natural resources in the
deadly tragedy of "commons ownership."

This global resource overview is offered in the spirit of the environmental slogan to "think
globally and act locally." I hope it will make a constructive contribution to carrying out
the committee's vital tasks.

169

Let me first say that this country and the world owe a major debt of gratitude to the
environmental movement which has so sharply increased our sensitivity to the natural
world and the need to preserve our natural resources I share their goal of preserving the
world's wildlife and wildiands I share their hope that we now have the knowledge and
the will to preserve all of the wildlife species on the planet, even as the world's human
population continues to increase and become more affluent

However, I bring a warning to this committee and to the environmental movement. We
cannot save the world's endangered wild species without high-yield farming Nor without
high-yield forestry Nor without liberalized opportunities to exchange the products of
these natural resources more freely among regions and countries, so that we can use the
world's best-suited land and best production systems to minimize food and forestry's land
requirements. That is the only way we will continue to have habitat for the wildlife.

We must also recognize that the United States bears a special responsibility in these areas
both because of our unique endowment with land and climate, and because of our world
leadership in research and technology The world can probably not save a high proportion
of its wildlife habitat without America playing a fiilly supportive role in that effort.

We must face the fact that the world's human population will nearly double before it
restabilizes. We must produce food for these people, otherwise, they will hunt down
virtually every wild creature for the stewpot, and then plow down the wildiands for low-
yielding crops. We cannot hire enough game wardens to save the wildlife if the people are
truly hungry.

In addition, that larger world population is rapidly and broadly gaining affluence. Higher
incomes mean smaller families, and thus affluence is good for the environment ~ but it
also means farmers must supply more resource-costly foods such as meat, milk and eggs.
It means more demand for cotton clothing in the tropics. We must be able to produce
three times as much food and fiber fi-om our farms by 2050. At the same times, we must
also radically increase our output of forest products. And we must do all of this wdthout
sacrificing wildlife.

If we cannot achieve food and forest product increases through higher yields and fi-eer
trade, then the demand for these products will be satisfied by invading wildiands. Most of
the wildiands invaded will be in the tropics, with their dense biodiversity.

Fortunately, we have developed the knowledge base to avoid such losses. The U.S. -led
efforts to develop such technologies as plant breeding, chemical fertilizers, pesticides and
irrigation are becoming even more critically important. Moreover, our traditional research
efforts are now being amplified by biotechnology. Because of biotechnology, we can look
forward soon to rice that resists the tungro virus and thus has higher yields. We will have
such new developments as com and cotton that carry their own built-in natural pesticide,
also delivering higher yields. Genetically-engineered pork growth hormone will give us
hogs with half as much fat, produced from 25 percent less feed grain ~ and better feed

170

conversion. Cloning the best trees can give us forest plantations with ten or 20 times the
yield of a natural forest. Trade can often increase the efficiency of our natural resource
use by three fold or more.

However, our policy framework is failing to support the higli-yield approach.

~ The Federal regulatory process too often seems dedicated to the "ideal" of low-yield
organic agriculture. The certainty of massive wildlife habitat losses is ignored while we
"protect" the public from unproven and unlikely heahh "risks "

~ The Federal farm programs divert urgently-needed and capable cropland from
production in America, which triggers the plow-down of land in other countries with far
less productive capability and far more species diversity

~ Too much of our agricultural research momentum is being diverted into so-called
"sustainable" farming systems that are unlikely to produce enough yield to protect the
existing wildlife habitat from invasion

~ Our forestry efforts seem determined to ignore the world's growing demand for forest
products, and the fact that America has more than its share of fast-growing trees These
trees are not antique rocking chairs which can be urethaned and put beside our fireplaces
as trophies. They are living organisms which will either be harvested or die.

~ Locking up fast-growing forests in the Pacific Northwest for the spotted owl will do
nothing to lower the world's demand for forest products; it merely shifts the focus of that
demand to species-rich tropical forests or slow-growing Siberian trees that may not be
replanted.

~ Too much of Americans' concern about biodiversity is poured into "saving" sub-species
and populations of non-threatened species in America, while the impacts of our farm and
forestry policies on habitat and species destruction overseas is ignored.

~ With the best environmental intentions, we have attempted to impose command-and-
control environmental regulation on agriculture, the most diverse, site-specific and
decentralized industry of all. As an excuse for this regulation, we have blackened the
environmental reputation of farmers, the very people who pioneered conservation and on
whom we must finally and inevitably depend for the preservation of many species In
some cases, conservation incentives have become so perverse that people have been
thrown in jail for creating v^dldlife habitat. Landowners have lost the use of their lands
because they attracted wildlife. Forest owners are now cutting trees quickly, before they
attract endangered species and lose the right to cut timber at all.

Mankind is at the most critical moment in environmental history. What we do as people
and societies in the next two decades will determine whether we bequeath a more
populous but sustainable worid to future generations - or bring on the very apocalypse of

171

famine and wildlife destmction that Greenpeace and Earth First! have publicly predicted
America's policies need to lead the way

The most critical environmental decision we will make is how and where we grow our
food Because of America's size and leadership position, our food and forestry decisions
will have a huge impact on how humanity uses two-thirds of the earth's land surface — and
thus the availability of habitat for the world's wild species

The stakes are huge I estimate that high-yield farming is already preserving 10 million
square miles of wildlife habitat from being plowed down for food. That's equal to the
land area of North America. By the year 2050, the difference could well be 20 million
square miles of wildlands

So far, we are making the wrong decisions, for the wrong reasons, based on the wrong
information. On agriculture, forestry and wildlife, we are too often "Thinking locally and
acting illogically"

Unless we take a new approach to conservation, keyed to 1 ) encouraging high yield crops
and forests, 2) environmental incentives for private resource owners, and 3) fi-eer trade in
natural resource products, the world will lose huge tracts of wildlife habitat which should
not be lost. Unless the United States takes the leadership in this change of strategy, it is
not likely to happen. Unless America uses its own cropland and forestland more
effectively, we may be directly responsible for the destruction of wildlife species by the
thousands. Some of these wall be in our own country, but by far the majority would be
lost from the tropical forests that would be cut and plowed to compensate for the
frivolous waste of key American natural resources.

It is not America's Endangered Species Act which is truly protecting the wild genes in the
rain forests, and preserving our opportunities to find cures for childhood leukemia and
other natural medicines. The world's wild genes have actually being preserved by the
Green Revolution and high-yield pulp plantations that have prevented the need for
expansion of crops into the tropical forests.

Thanks to high-yield farming, the First World has farmed less land. Cropland is being
diverted rather than cleared.

In Chile, where crop yields have been rising, no forests have been cleared for food. In
nearby Ecuador, where the crop yields are stagnant and there is no money for food
imports, they are expanding the cropland at 2 percent per year ~ by clearing the forests.
The damage to the gene pool from cropland expansion in that one Latin American
country dwarfs anything that could possible happen under the ESA.

The clearing of tropical forests in countries such a Brazil and Indonesia has been
happening because of food shortages, but because the stagnant and graft-ridden
economies in those countries have not generated enough off-farm jobs. Someday I hope

172

to hear envirionimental groups criticize Third World governments for saddling their
people with too many government jobs and too little opportunity.

Only in Africa, where high-yield farming is not yet being used, has the world lost large
amounts of wildlands and wild genes in recent years The African problems have included
statist policies, government subsidies to urban consumers and too little investment in
agriculture and forestry research.

THERE IS NO UPWARD POPULATION SPIRAL

Recent dramatic reductions in world birth rates are beginning to ease our irrational fear
that the human population would simply keep growing itself to death There has never
been an affluent country with a continuing high birth rate, and the GATT is now helping
virtually the whole Third World to gain affluence As a result, its population growth rate
is declining radically. Births per woman have fallen from about 6.5 in the 1960s to about
3.2 today; since stability is 2. 1 births per woman, the Third World has already come
three-fourths of the way to stability. The First World is already at about 1 7 births per
woman, implying an long-term decline in world population after a peak of 8-9 billion
people about 2040

(It is important to note that the countries which have brought down their birth rates the
most have also made the most progress in raising their yields of crops.)

This means American international policy concerns are probably now too heavily weighted
toward population "management" and give too little support for resource preservation
strategies.

HABITAT IS THE KEY

The earth's cities currently occupy only about 1 .4 percent of the planet's land surface. By
the year 2050, if we have as many as 10 billion people, the vast majority will live in cities
that will occupy less than 4 percent of the land. If these people treat their sewage and
invest in clean energy, what threat do they represent to wildlife? Not much — unless it
takes too much land to grow their food and forest products.

High yields, however, have proven they can take the environmental sting out of population
growth and affluence. We are already feeding twice as many people today as we fed in
1950. We're feeding them better diets, with lots more high-quality protein Yet the world
is still cropping virtually the same 5.8 million square miles of land that it used for crops 45
years ago.

If the world's farmers today got the yields they achieved in 1950, the world would need
nearly three times as much cropland to produce today's food supply A total of 15-16
million square miles is a reasonable estimate, given the poorer soils and steeper slopes that

173

would have to be fanned. That would mean the biggest loss of wildlife since the Age of
the Dinosaurs ended

Forestry expert Roger Sedjo of Resources for the Future estimates that high-yield tree
plantations could produce the forest products for 10 billion affluent people from less than
5 percent of the earth's current forest area That would free the rest of the world's forests
from logging pressures, though we would still need to make forest management choices
(between logging and managed fire) to prevent big forest fires

We must also give greater consideration than the U.S. environmental movement has yet
conceded to the global forest impact of not han'esting America's fast-growing trees.

Naturalists who fear losing wildlife species are worried first and foremost about losing
habitat Without the higher yields, we might indeed lose millions of wild species over the
next 50 years With continued investments in the technology of high-yield farming and
forestry, we might not have to lose any

THE WORLD'S BEST LAND HAS THE FEWEST WILD SPECIES

One of the most important factors in saving species is the convenient fact that the land
most important to humans is the land least important to wildlife biodiversity. The best
lands tend to support large and vigorous populations of a few species It is the poorest
lands ~ such as the tropical forests and the vertically-challenging mountains - which
harbor the richest genetic reservoirs.

The huge, rich croplands of central North America probably never harbored more than a
few thousand species of flora and fauna. We can apparently find that many species in a
few square miles of tropical rain forest. Even within a tropical forest, the best soil types
are likely to have only one-tenth the number of tree species per acre as the poor soil types.

The number of wild species per square mile is very low in terrible soils (such as the white
sand deserts and acid-soil savannahs). Species diversity is at its peak on the almost-
terrible soils such as rain forests, mountain slopes, swamps, and other lands that farmers
avoid. By the time we get to lands capable of high crop yields, the species diversity is
quite low.

Dr. Michael Huston, the well-known ecologist from the Oak Ridge National Research
Laboratory says that the world's wildlife diversity is strongly tied to soil resources ~ and
that North America bears a special responsibility for defending the world's wildlife species
because of its rich soil endowments. '

Dr. Huston emphasizes that the world's soil map shows relatively few areas with broad
expanses of high-quality soils (appropriately moderate acidity, high cation exchange rates

Dr. Michael Huston, "The Environmental Need for Free Farm Trade," presented to the Hudson Institute
1995 Farm Policy Conference, Washington, D.C., Feb. 7, 1995.

174

temperate climates and adequate rainfall) The Sahara Desert and the deserts of Central
Asia have some good soils, but no moisture

The tropical regions, which harbor so many species, are inherently poor for crop
production. High temperatures bum up organic matter quickly from the soils Heavy
rains leach out plant nutrients and wash away vulnerable soils.

The key food production regions, based on inherent soil quality and low species diversity
are North America, the Ukraine and parts of Asia, especially China Argentina has the
same advantages in the southern Hemisphere, but its land area is far smaller

ENDANGERING SPECIES WITH FARM CHEMICALS?

To my knowledge, the only wild species we have so far sacrificed to high-yield farming
was the passenger pigeon. As the rich hardwood forests of Indiana and Ohio were
cleared for crops in the 19th century, the passenger pigeon's habitat and food supply
disappeared. (However, it was market hunters who finished off the remnants of the
passenger pigeon population; otherwise we might still have some of them to observe and
enjoy.)

Naturalists are not very fearfijl of farm chemicals. So far, farm chemicals have not even
been able to cause the extinction of such pest species as the boll weevil and the malaria
mosquito, where we were trying.

Too many conservationists have taken fears as fact.

~ Many readers of Rachel Carson's Silent Spring still believe that DDT killed robins. In
fact, tests show that robins can tolerate huge doses of DDT (10,000 parts per million)
with no ill effects. They simply excrete it. (In those days, we treated seed with mercury
to prevent fijngal attacks; Ms. Carson's robin kills were probably due to eating mercury-
treated seeds.)

~ In 1975, Cornell University reported on a test in which DDT, PCBs and mercury were
fed to birds. DDT had no effect. PCBs sharply cut the hatching rate of the eggs.
Mercury not only cut the hatchability of the eggs, but it weakened the eggshells^ It was
almost certainly the PCBs and mercury which threatened the raptor birds, and it was
almost certainly the Clean Water Act of 1972 which saved them. The environmental
movement still deserves the credit for saving birds, of course.

~ One of the famous studies that "proved" DDT lowered the reproduction rate of mallard
ducks had more variability among the control groups than between the controls and the

^ Scott, et all, "Effects of PCBs, DDT and Mercury Compounds Upon Egg Production, Hatchabilitj' and
Shell Quality in Chickens and Japanese Quail," Poultry Science, Vol. 54, 1975, pp. 350-368.

175

test group! In fact, the data seem to "prove" that moderate doses of DDT increased ihe
number of live ducklings per hen/*

~ Another study "proved" that DDT weakened eggshells, but the calcium in the birds'
diets was deliberately held below the levels needed for eggshell formation.''

I don't raise the questions about DDT because I want to bring DDT back. Today we
don't use or need DDT or the other persistent pesticides in America. (Africa's malaria
problem is another question.) We use compounds that target pests more narrowly, need
far less volume, break down more quickly and are thoroughly tested to ensure both human
and wildlife safety But the banning of DDT is still waved as the reason why we should
hate and fear all pesticides

Too often we have compromised good science. Too often, we have let political
expedience get in the way of good long-term public policy DDT is a case in point.

Thirty years after Silent Spring, we know that high-yield farming - pesticides and all ~ is
the most sustainable and sustaining system of farming devised in 10,000 years This is due
to both its low land requirements and its low soil erosion per ton of food produced. So far
as medical science can tell, farm chemicals represent near-zero risks to people and wildlife,
while delivering huge wildlife preservation benefits and huge reductions in our cancer and
heart disease risks.

Until and unless we can prove some of the negative impacts that have so far only been
claimed against farm chemicals, environmentalists should be cheering effective pesticides.
And that means proven to the point of peer-reviewed scientific consensus. It does not
mean a quasi-scientific paper cheered on by a claque of close colleagues and published
under a scary headline.

My home state of Virginia recently banned a soil insecticide called Furadan 15G, which it
regarded as the worst farm chemical threat to the state's wildlife. This granular soil
insecticide had caused "hundreds" of documented bird deaths over a period of years when
birds mistook the granules for seed or gravel. Fortunately we had alternative pest
controls, and we could give up Furadan without major yield loss. But if we had to ban all
pesticides, and accept a 50 percent cut in yields, Virginia might have to plow another 2
million acres of wildlands to make up the production loss. How many birds live in 2
million acres of Virginia wildlands?

We can't prove zero wildlife risk from farm chemicals. All we can prove is near-zero and
declining risks, offset by huge gains in habitat preserved.

' Heath, Spann and Kreitzer, 1969, "Marked DDE Impairment of Mallard Reproduction in Controlled
Studies," Nature, 224, pp. 47-48. (DDE is a metabolite of DDT which presumably might be found in the
mallards' diets.)

■* BiUnan, Harris and Fries, "DDT Induces a Decrease in Eggshell Calcium," Nature, 224, pp. 44-46.
Cited in Claus and Bolander, Ecological Sanity, McKay Co., New York, 1977.

176

The EPA's current crude effort to suppress farm chemical use should be tempered with a
far stronger appreciation of the wildlife benefits generated by higher crop and forest yields
This isn't a matter of dollars. Nor is it a matter of protecting human health, the use of
pesticides clearly cuts human healtii risks from cancer, heart disease and natural toxins/^

ORGANIC FARMING CANT SAVE THE WILDLIFE

The bitter truth for conservationists is that low-yield farming can't save the people or the
wildlife. Organic yields are only about half as high as the yields from America's good,
mainstream farms

Worse, the world has only perhaps 20 percent of the organic nitrogen needed to support
current world food production - let alone tripling output for the future The nitrogen
problem is huge. If all the urban sewage sludge in America were dedicated to our crop
field (heavy metals and transport costs notwithstanding) it would make up for only 2
percent of the chemical nitrogen fertilizer we currently apply

The only practicable way for the world to get huge increases in organ nitrogen would be
to grow millions of square miles of additional legume crops - sacrificing wildfire for
clover and alfalfa.

STOPPING SOIL EROSION

When we double the yields on the best and safest land, we slash soil erosion per ton of
food in half That's because we open only half as much land to wind and water If high
yields also eliminate the need to push crops onto a steep or fragile acres, then we cut soil
erosion by more than half

Now, chemical weed killers are letting us stop soil erosion virtually in its tracks. Having
already cut soil erosion per ton of food by two-thirds with high yields, American farmers
are now using conservation tillage and no-till farming to cut erosion another 65-98
percent, on 100 million acres of our most erosion-prone croplands. The herbicides let us
control the weeds without the moldboard plow, the steel cultivator shank and other "bare-
earth" farming systems.

PROTECTING GROUNDWATER

* Pesticides help prevent the infestation of field crops with dangerous natural toxins, both during
production and storage. In addition, they make possible the low-cost attractive fruits and vegetables
which are mankind's strongest protection against both cancer and heart disease. We have more than 100
epidemiological studies which show eating five fruits and vegetables per day cuts cancer rates radically;
we have no studies which show that the consumption of organically-grown fruits and vegetables cuts
cancer rates more effectively

177

There is additional good news about high-yield farming and groundwater Data from the
Management Evaluation Systems Areas is telling us that modem high-yield farming poses
little threat to groundwater^

MESA is telling us that less than 1 percent of the herbicides applied to the soil end up in
our groundwater. No health threats have been linked to the traces of pesticide which have
been found in our wells. In fact, EPA has recently raised the safety rating (the reference
dose) by seven-fold on atrazine, the most widely-found pesticide in groundwater
Apparently, the only Americans who are consuming pesticide traces above the Acceptable
Daily Intake in their groundwater are drinking fi-om surface springs and shallow, hand-dug
wells

Nor is nitrate in our groundwater a significant threat to humans. The only nitrate-related
threat to humans ever documented is blue-baby or cyanosis America has had only one
blue-baby death in the last dozen years, and that was due to a fertilizer spill near a
farmstead well.

Nitrate fi-om agriculture does still represent a problem in surface waters, for marine
ecosystems. However, if we make fijU use of the newest and most cost-effective farming
systems, we should be able to eliminate virtually all farm-related threat to groundwater
supplies, and sharply reduce farming's impact on surface waters as well.

These new nature-fiiendly farming techniques include:

- Lx)w-till farming systems (both conservation tillage and no-till) which cut surface water
runoff fi-om farmland by more than 90 percent. Reducing the surface water runoff not
only cuts soil erosion but eliminates most of the ofF-field transportation of chemicals.

- Site-specific farm management, which uses Global Positioning Satellites, intensive soil
mapping and sampling, and tractor-mounted microprocessors. This permits the farmer to
vary the application of seed, fertilizer and pesticides yard-by-yard across the field
according to soil type, plant population, slope, hydrology, nearness to waterways and any
other important factor. There is no need to put on more inputs than the crop will need,
nor any less.

~ Nutrient management plans that keep livestock and poultry wastes stored safely until
the optimum moment for application, knifing-in of the manures to prevent runoff, and
timing of manure application during the growing season for quick uptake. Such
technologies make maximum use of the plant nutrients in the manure in the fields rather
than permitting them to escape into surface waters. As a result, my Shenandoah Valley

MESA is a joint efifort of the U.S. Department of Agriculture, the U.S. Geolo^cal Survey, the
Environmental Protection Agency, and state agricultural experiment stations and the Federal-State
Cooperative Extension Service.

178

makes less than half as much contribution to nutrient loading in the Chesapeake Bay as
one sewage treatment plant near Washington, DC.'

CONSERVING WITH COWS

Cows are not environmental villains They enable us to use the world's grasslands to
convert biomass humans can't digest into high-quality healthful protein The grasslands
need to be grazed, or else huge wildfires would turn them into instant carbon dioxide.

If the grass is going to be grazed, it makes little sense to feed all of the ruminant protein to
wolves and lions in a world that keeps threatening to clear tropical forest for meat
production

(With more and more high-yielding pasture grasses being developed, there should be no
need to clear forest for pasture. The Amazon was being burned to create pasture because
of a Brazilian government subsidy, not a beef shortage.)

Overall, the grasslands help to meet human food requirements with little loss of
biodiversity and very little soil erosion.

THE ENVIRONMENTAL NEED FOR TRADE
IN NATURAL RESOURCE PRODUCTS

If we must triple the world's output of farm and forest products without destroying
wildlife habitat, we will need to use the world's best-suited land as productively and
eflficiently as possible. Unfortunately, the lands are poorly distributed to meet food and
forest requirements from local production.

The recent calls from some environmentalists for "resource self-sufficiency" is a misguided
effort to ease natural resource constraints, or perhaps even to suppress population growth.

The real key to resource sustainability is to grow the crops and the trees where they grow
best, and exchange food and forest products for other needed goods and services. Such a
trade strategy would permit the huge tracts of prime cropland in America and Argentina to
meet the gigantic food gap emerging in Asia. Millions of tons of American com, wheat,
cotton and meat should be *;xported to the densely-populated countries of Asia.

Indonesia is already attempting to clear 1.5 million acres of tropical forest to grow low-
yielding soybeans to feed its broiler chickens. India is stealing crop biomass from its fields
to get an additional 2 million tons per year of dairy products, and never mind the soil
erosion which will result in the ftiture. China is building a huge dam for power and
irrigation that will displace 1 .2 million people from the Yangtze Valley. No less than 56

^ Dr. Rick Halpem, "Where Have All the NuUients Gone? Intensive Livestock Fanning and Surface
Water Quahty," 1995 Hudson Institute Farm Policy Conference, Washington, D.C. Feb. 7 , 1995.

179

dams are being planned for the Mekong River Delta in Southeast Asia, which will destroy
the migratory patterns of the freshwater fish

Must we watch the Bengal tiger and the Indian barking deer be sacrificed to national pride
in "food self-sufficiency "^ Must we watch species-rich tropical forests be sacrificed
because America refuses to harvest second-growth Douglas fir?

The world indeed needs an "environmental round" of the General Agreement on Tariffs
and Trade. Such a round should have as its highest priority a mandate to liberalize trade
in farm and forest products Farm product trade, in particular, is constrained far more
severely than trade in nonfarm products. Currently, the farm trade barriers are having the
perverse effect of forcing the expansion in world's food production to be made from low-
yielding acres in densely-populated countries; too often the food increases are actually the
result of environmental sacrifice. Meanwhile, North America spends government money
to divert 40-50 million acres of good cropland; Western Europe is beginning to waste
good cropland on the same pattern; and Argentina is pasturing cattle on 75 million acres
of the rich Pampas.

Nor is any attempt being made to rationalize the world's forest product needs among safe,
fast-growing wild and plantation forests. Yet this is obviously what needs to be done in
order to harvest the fewest and safest acres, to save the fragile and slow-growing forests
and the critical habitats with high biodiversity. We dare not sacrifice the world's overall
preservation patterns to national near-sightedness.

ENDING THE TRAGEDIES OF THE COMMONS

Another global pattern is relevant here to both our national and international policies ~ the
"tragedy of the commons."

Iceland learned about the tragedy of the commons in the 12th century, when the eider
ducks and other sea birds were declining because too many people took too many of the
eggs. Iceland solved the problem be declaring that the eggs were the property of the
person on whose land they were laid. The sea bird populations immediately began to
recover, because every landowner wanted lots of birds nesting in their property.

We see the same problem - and solution ~ today in Africa's elephant population. The
elephants which do not effectively belong to anyone are being killed. They are being killed
because their hides and tusks are valuable, but also because they trample crops, houses
and tribespeople. In East Africa, the elephants' very survival is threatened, even though
the governments have put the elephants under their "protection" in national parks and
armed their game wardens with assault rifles.

In southern Africa, however, the elephants are thriving. The difference is that in the
southern countries, the governments have made the local villagers partners in the
"elephant business." The local residents share in the revenues from hunting and photo

180

safaris, and from the meat and hides Here, is it poachers who are in danger, and not
elephants

This is not simply a parable for Third World governments It is a key lesson in natural
resource management. The more incentive that local resource managers have to preserve
wildlife, the more wildlife will be preserved The more heavily we depend on police
powers to protect widely-scattered resources, the more of them we will lose

The environmental movement has come close to completely alienating the agricultural and
forestry communities, when they should have embraced them as critically-important allies
Fanners and ranchers now fear the Sierra Club and the Fish and Wildlife Service. They
are looking for ways to avoid involvement instead of ways to protect nature Regulatory
approaches which may have worked tolerably well in monitoring big chemical plants are
useless in getting farmers and ranchers to look after little wild organisms in remote
locations.

I have a book in which a nutritionist living in New York City demands that farms be put
where she and her fellow urban consumers can conveniently look over the fences and
make sure that their food is being produced with appropriate environmental sensitivity
To anyone who knows food production this is obvious nonsense, it would either force the
depopulation of our cities or create horribly expensive roof gardens on the upper levels of
New York's parking garages.

Too many people are nearly as unrealistic about saving wildlife out in the wild. They
don't want to trust the people on the ground to conserve. But in reality, there is no
choice.

Conservationists must have the positive cooperation of rural resource managers. The
"ownership" of those resources must be a clear as possible, and the incentives to conserve
and preserve must be clear and positive.

There is no way that real and lasting conservation can be accomplished by governmental
"seizure" of private lands, by dictating fencelines from Washington, by depriving small
landholders of the use of their property. Such a police-state approach may give some
environmentalists and/or government officials a temporary feeling of power but the
conservation results on the ground will be horribly disappointing in the long term.

Fortunately, it is not that difficult to get the cooperation of farmers, ranchers and the
forestry industry on something they favor as strongly as they favor conservation. These
people have grown up with conservation. They have always taken pride in it Many of
them have already made expensive personal investments in it because they get to enjoy the
results more than anyone.

What's needed is some assistance from a soft-spoken biologist in understanding what
species are on the land and what their habitat requirements are, and some modest

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incentives for any actual income lost due to the endangered species' real needs These will
prove to be low-cost and highly rewarding investments for any endangered species
program

THOSE CONFUSING "CONSERVATION" SUBSIDIES

One final word about the cropland diversion programs which have been operated
fraudulently in the name of conservation. The USDA's Agricultural Stabilization and
Conservation Service should never have been allowed to label itself a consei^'ation agency
The agricultural price supports have had major environmental impacts, few of them
favorable. The price supports have led to the draining of wetlands which should not have
been drained, to the plowdown of steep and drought-prone land which should not have
been plowed, to discouraging crop rotation and often the overuse of chemicals

The so-called "conservation impact" of annual cropland diversion has actually been to
stimulate the conversion of wildlands to crop production in other countries Our cropland
setaside creates no wildlife habiat, prevents no soil erosion worth discussing, and produces
no farm products. It simply wastes the sunlight and rainfall which descend on the land
over the course of the year.

The conservation impact of the so-called Conservation Reserve Program is also highly
questionable. CRP did not even take out the most fragile farmland in America, let alone in
the worid. Too many of the CRP acres were put under 1 0-year contracts because it was
inconvenient for the owners to farm them.

About 20 percent of the CRP land has been put into trees. Very likely this was most of
the really poor land put into the CRP. Now that's done, because the trees will stay in
place. The contracts on the rest of the CRP land should be allowed to run out. The land
should be put back into the forage or crop production for which it is best suited - so long
as any cropping is done with conservation tillage.

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Professional

SOCIETY OF AMERICAN FORESTERS

5400 Groncnor Lane • Bcthesda. .Maryland 20814 • (301) 897^720

Testimony by Gene Wood

Representing

The Society of American Foresters

COMMITTEE ON RESOURCES

U.S. House of Representatives

May 25, 1995

Re: Comments on the Reauthorization of the Endangered Species Act

Mr. Chairman, my name is Dr. Gene Wood. I am representing the Society of American
Foresters (SAF). The Society, 18,000 members strong, is the scientific and educational
association representing the forestry profession in the United States, including public and private
practitioners, researchers, administrators, educators, and students. Our primary objective is to
advance the science, technology, education, and practice of professional forestry for the benefit
of society.

Introduction

The Society of American Foresters recognizes TTie Endangered Species Act (ESA) of 1973
(P.L. 93-295, as amended; 16 U.S.C. 1531-1543) as one of this nation's most important and
powerful environmental laws. However, the methods of implementing the act and its use to
restrict forest management on public and private lands suggest modifications are needed to
temper the initial goals of the act with the reality of society's need for forest resources.

The ESA was enacted to provide a means of conserving ecosystems upon which endangered
and threatened species depend, and a program to conserve such species, including those
covered by various treaties and conventions. Recent listings of species as threatened or en-
dangered (T&E) have sharpened the debate on the goals, provisions, implementation, and
consequences of the Act. Two species in particular~the red-cockaded woodpecker in the
South and the northern spotted owl in the Pacific northwest-have intensified the discussion,
especially as they are affected by management of forest lands. The protection of both species
has significant impact on forest management options on a regional scale.

Using the Scientific Knowledge and Technical Skills of ike Forestry Prvfession to Benefit Society

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Comments on the Reauthorization of the Endangered Species Act
Testimony - Committee on Resources

ESA Reauthorization

The ESA is in need of and overdue for reauthorization. As a result of a two year review of
the ESA Reauthorization by the SAP ESA Reauthorization Task Force, comprised of
professional foresters, SAP made the following recommendations to the US Congress in
1993:

• Continue listing of species based solely on science.

• Provide for peer group review before completing the final listing process.

• Develop criteria and guidelines for listing below the species level and use
scientific techniques to answer questions on speciation, subspeciation, and
distinct populations.

• Mandate recovery plans that address physical and biological feasibility and
consequences, economic efficiency, economic impacts, social or cultural
acceptability, and operational or administrative practicality of recovery actions.
Include a range of recovery alternatives and risk analysis of each.

• Complete recovery plans within one year of listing using a core group of an
experienced recovery team, managers, planners, and scientists.

• Develop measurable and clearly defined recovery objectives and recovery
timeframes for each species at lowest feasible social and economic costs.

• Evolve toward ecosystem management as public policy for public land
management as scientific knowledge becomes available to support this
approach.

• Prioritize species for recovery efforts to wisely allocate scarce financial
resources.

• Change the composition of the Endangered Species committee ("God Squad")
to enhance involvement and knowledge of the issues by members.

• Recognize rights of private landowners and society's responsibility to mitigate
costs for species protection on private land.

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Comments on the Reauthorization of the Endangered Species Aa
Testimony - Committee on Resources

• Develop a phased approach from voluntary landowner plans to acquisition of
property at fair market values for species protection.

• Delete citizen suit provisions against private landowners.

Basic Principles

Our position is built on several principles that together serve the needs of species protection
and preservation while working within the general beliefs upon which society is built. The
Society of American Foresters believes:

• The conservation of species and ecosystems as provided for by the ESA is
important to society and the profession of forestry.

• Management of the nation's forests should take into account the entire biotic
community, especially species which are threatened or endangered.

• Species conservation must operate within the context of our democratic society
that depends upon, and values private enterprise and respects private property
rights. As societal goals change, so do the related issues. Thus, laws will be
enacted and modified over time to meet changing public values and
expectations.

• The ESA must work in harmony with other laws (e.g. , National Environ-
mental Policy Act of 1969, National Forest Management Act of 1976, Federal
Land Policy and Management Act of 1976) to maintain and support healthy
forest ecosystems that can insure a range of resource benefits, both amenity
and commodity. Therefore, conflicts surrounding the interpretation of these
laws regarding species preservation should be recognized and reconciled.

• A comprehensive approach, using all environmental laws and trending toward
broader ecosystem management, is needed to provide habitat protection for all
species, not just those listed as threatened or endangered, thereby minimizing
the need to list additional species.

• Institutions, and landowners, both public and private, should support the
purpose and intent of the ESA. Cooperation, not confirontation, will offer the
greatest potential for success.

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Comments on the Reauthorization of the Endangered Species Act
Testimony - Committee on Resources

• Public and private forest lands have a significant role and responsibility in the
conservation of species and ecosystems. Pursuant to the 5th amendment to the
U.S. Constitution, basic private property rights must be considered, valued,
and protected where private lands are necessary to conserve a listed species or
habitat.

• As U.S. and world populations continue to increase, there will be additional
demands on forest lands to produce a range of outputs. Applying the ESA
must consider human needs for both commodities and a healthy environment.

The Society of American Foresters makes the following recommendations for improving the
current ESA and its application:

The Listing Process

Listing of species should continue to be based solely upon the best scientific and commercial
data available, as currently stated in the ESA (Section 4b). The Secretaries of Interior and
Commerce may, on their own initiatives, propose to list species, and interested parties may
petition for a listing but, in either case, neither the general public nor the biological sciences
community of interests are involved in the process for purposes of comment until after a
proposal to list is published in the Federal Register.

With respect to the scientific basis of a proposed listing, the broad interests of society must
be provided for in a revised process which guarantees an objective and impartial application
of science in determining the adequacy of biological information that supports proposals or
petitions to list a species.

Accordingly:

Prior to a listing, a proposal to list should be referred to an independent Select
Biological Committee (SBC) comprised of federal and state government, and
private sector scientists who are not involved with federal agency listing ac-
tivities.

The SBC "peer group" would accept, hear, and review all information
pertinent to a listing proposal and make a finding about the scientific adequacy
of the proposal. If the Secretary's subsequent decision to list is inconsistent
with the SBC finding, the Secretary must disclose the inconsistency, and
explain to the public the reasons for proceeding with the listing.

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Comments on the Reauthorization of the Endangered Species Aa
Testimony - Committee on Resources

• The SBC should also participate in developing or changing criteria and

guidelines for listing any fish, wildlife, or plant below the species level.
Modem scientific techniques such as electrophoresis, DNA analysis, or otiier
state-of-the-art techniques should be employed where appropriate. The
committee should also be involved in reviews of questions about speciation,
subspeciation, and listing of populations.

The Recovery Plan Process

The recovery plan process is one of the most fundamental components of the ESA, and is
initiated after a species is listed. Federal agencies have an affirmative responsibility to
support the development and implementation of recovery plans, and to work towards
recovery of listed species. A revised ESA should specify that recovery plans should address
the physical and biological feasibility and consequences, economic efficiency, economic
equity, social or cultiiral acceptability, and operatioPial or administiutive practicality of
actions aimed at promoting the persistence and recovery of listed species.

Additionally:

Recovery plans should contain clearly defined objectives and timeframes that
lead to measurable goals for recovery and ultimately delisting of tiie species.

Critical habitat designation should become a key component of and emerge
from the recovery plan process.

Habitat Conservation Plans are an important component of this recovery plan.
Habitat Conservation Plans (HCP) have been developed by private entities in
voluntary cooperation with the U.S. Fish and Wildlife Service that are
effective in preserving and providing habitat for endangered and tiireatened
species. Plum Creek Timber Company has established HCP's for botii the
Grizzly Bear and the Spotted Owl in the Cascades region of Washington. In
the Southeast, Georgia Pacific Corp., Hancock Timber and International Paper
Co. have developed HCP's for the Red-cockaded woodpecker. Pinehurst
Countiy Club in North Carolina has managed Longleaf pine to encourage tiie
Red-cockaded woodpecker to inhabit their property to facilitate recovery of the
species. All of this has been accomplished under Section 7 consultations witiiin
the current law.

Realizing the potential for exti^me adverse impacts to the private property
rights of Pacific Northwest landowners under Option 9 of the President's

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Comments on the Reauthorization of the Endangered Species Act
Testimony - Committee on Resources

Northwest Foresti^ Plan, the US Fish and Wildlife Service has exempted all
private woodland owners whose property is eighty (80) acres or less in size
from the Spotted owl recovery program. Thus, the Interior Department is
utilizing significant administrative leeway provided under the ESA. This is the
type of science-based, common sense implementation of the ESA that is
needed. More of this kind of innovation and constiTictive reauthorization
discussion is needed.

The entire recovery plan process should be completed within twelve months
following the listing of a species.

To improve the efficiency and continuity of the recovery plan process, special
recovery teams should be established around a core group of experienced
recovery process planners and scientists. The core team would be augmented
with the appropriate species specialists from within and outside the agency
responsible for each individual recovery plan initiative. Provision should be
made for periodic review and public comment on proposed revisions.

To gain the efficiencies that the shortened recovery plan process should yield,
society must accept the fact that plans will be "living documents" that will
change as additional data becomes available. Recovery plans should
acknowledge key information needs and provide for research, inventories,
monitoring, and specified timelines to fill information gaps and be adjusted
when necessary to reflect new knowledge.

Recovery plans should include alternative options for achieving recovery, with
associated risk analysis to assess the likelihood (high, medium, or low) for
success of these options. Whenever possible, the alternative that achieves
recovery with the least adverse socioeconomic impact should be selected.

The agency responsible for recovery initiatives should develop a set of criteria
and guidelines for establishing a species recovery prioritization process that,
among other things, recognizes actual and potential ESA program fimding
levels and limitations, societal values and priorities, and chances for recovery
success.

While recovery plans focus on public lands, a program to stimulate
government/private partnerships should be developed and implemented where
private lands are critical to the recovery effort. An option to include in such

-6

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Testimony - Committee on Resources

programs should be provision to relocate listed species from private to public
lands where feasible.

• Because the knowledge base for many situations is currentiy inadequate, a

statutory requirement to list multi-species and "endangered ecosystems" would
be premature at this time. Rather, the recovery plan process should be
stimulated to evolve steadily over the longterm toward multi-species
management plans that focus on ecosystems and ecological communities.

The Secretary of the Interior and Undersecretary of Commerce for Oceans and Atmospheres
released a lengtiiy set of documents on March 6, 1995, which describe ten principles to
balance endangered species protection wiUi economic development. Their implementation
will bring significant change to the way tiie Endangered Species Act is implemented. These
principles are stiikingly similar to SAP's recommendations to Congress in 1993 concerning
reauthorization of the ESA. They are:

1. Base ESA decisions on sound and objective science.

2. Minimize social and economic impacts.

3. Provide quick, responsive answers and certainty to landowners.

4. Treat landowners fairly and with consideration.

5. Create incentives for landowners to conserve species.

6. Make effective use of limited public and private resources by focusing on
groups of species dependent on die same habitat.

7. Prevent species from becoming endangered or tiireatened.

8. Promptly recover and de-list threatened and endangered species.

9. Promote efficiency and consistency.

10. Provide state, tribal, and local governments with opportunities to play a
greater role in carrying out the ESA.

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Comments on the Reauthorization of the Endangered Species Act
Testimony - Committee on Resources

Private Lands-Roles and Responsibilities

Seventy-two percent of American's commercial forests are in private ownership. These
private lands play an important role in the protection of biotic communities. The principle of
private ownership of land is based both upon English common law and the 5th amendment to
the U.S. Constitution. Private ownership thus carries with it a commensurate stewardship
responsibility. A revised ESA should encourage willing stewardship through incentive
programs designed for various land use and management activities. The revised ESA, and
the implementation of its principles, should recognize the following:

• Private landowners who cede conti-ol of their lands to society in the name of
preserving threatened or endangered species should receive just compensation.

• Species recovery on private lands is a public responsibility. Private landowner
roles concerning avoidance of "take", as defmed in the ESA, must be clearly
stated in federal law.

• Applicants for an "incidental take" permit are expected to Ue an associated
Habitat Conservation Plan (HCP), which, for many landowners, could be
prohibitively expensive. A new, more workable process should be substituted
for the current HCP process. A phased approach, as outiined below, would
address those landowners whose lands are essential to the conservation of a
listed species, but who are unable to bear the costs.

Phase 1: Upon determination that a listed species occurs on private ownership,
the agencies involved should, where the lands and species are essential to the
conservation of the listed species, immediately seek to work with landowners
and/or managers to develop a voluntary cooperative management plan that
meets the species' needs for protection and landowner objectives. The plan
should result in a documented fmding of "no take" or "no jeopardy".
Generally, tiie process should be completed within twelve months.

Phase 2: When steps to produce voluntary plans do not prove successful, and
where material interests in the property are necessary to meet species
protection goals, the responsible agency should seek to purchase a conservation
easement covering the interests needed. Generally, Phase 2 should be
completed within 2 years of the start of Phase 1 initiatives.

Phase 3: If neitiier Phase 1 or 2 prove successful, the responsible agency
should seek eitiier (1) to exchange public lands acceptable to the landowner, or

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190

Comments on the Reauthorization of the Endangered Species Aa
Testimony - Committee on Resources

(2) be prepared as courts may direct to justly compensate the owner. If an
exchange is not acceptable, the agency should seek to acquire the affected
property at a value at least as great as it would be without the presence of the
listed species. Generally, Phase 3 should be completed within 3 years of the
start of Phase 1 initiatives.

As an alternative to a judicial determination of easement value (Phase 2) or compensation for
a taking (Phase 3), a "Market Values Board" should be considered to settle taking and values
disputes that may arise. This approach should not be construed as making "compensation for
a taking" an agency responsibility without a legal finding under current law that
compensation for the taking is due. Rather, SAF proposes the alternative as a "willing
buyer - willing seller" scenario within which to resolve administratively taking
compensation cases quickly and fairly. If the result is not successful, landowner claims that
compensation is due for a taking of property shall be addressed in the courts under existing
law.

• If the responsible agency determines that management plans or acquisition of
interests are not necessary, a landowner's responsibilities under tiie ESA
should be considered terminated.

• Surveys or other practices to determine the presence of a listed species are a
wildlife agency's (state or federal) responsibility. Landowners should grant
rights of ingress, and be encouraged to cooperate voluntarily, but not be
expected to bear the cost.

• Funding realities mandate establishing priorities for recovery of a species.
Populations or individuals of a listed species outside of targeted recovery
populations and /or critical habitats, and not part of the Phase 1 cooperative
planning process, should not be subject to ESA restrictions.

• It is a federal responsibility to ensure landowner compliance with the ESA. If
a landowner is thought to be in violation of the Act, citizen suit provisions
under section 1 1(g) of the ESA should be limited to actions against the
appropriate federal agencies.

The Endangered Species Committee

The make up of the current Endangered Species Committee ("God Squad") guarantees its
impracticality and unworkability. Its federal members (Cabinet and near-Cabinet level -ESA,
Section 7(e)(3)) are seldom personally involved in ESA tasks at hand or routinely familiar

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191

Comments on the Reauthorization of the Endangered Species Act
Testimony - Committee on Resources

with the issues at stake. Except for the Secretary of the Interior (one of the six federal
members) who chairs the ESA, the federal members should be replaced. In their stead
should be appointed high-level and knowledgeable natural resource and social science
professionals from other federal departments. The Secretary of the Interior, as under the
current ESA composition, would be accountable for ESA exemption decisions.

SAP urges Congress to immediately address the issue of reauthorizing the ESA. What is
needed and desirable is reauthorization of the ESA through thoughtful discussion to devise
legislation that is firmly grounded in science, and with due consideration to economic and
social factors.

192

STATEMENT OF DR. TOM J. CADE, PROF. EMERITUS, CORNELL UNIVERSITY,
AND FOUNDING CHAIRMAN, THE PEREGRINE FUND, INC., BOISE, IDAHO, ON
CAPTIVE BREEDING, TRANSLOCATION, AND THE ENDANGERED SPECIES ACT.

Mr. Chairman, Thank you very much for inviting me here before
the Endangered Species Act Task Force to speak about the role of
captive propagation, translocation, and other "hands-on" methods in
the restoration of endangered species, and how those procedures
relate to the overall strategy for preservation and recovery of
species listed persuant to the Act. I will present this
information from the perspective of my own work and that of the
organization which I represent, and I will comment on how the ESA
has influenced our endeavors — both the good and not-so-good
aspects. I should note for the record that we have had a great
deal of practical experience with the implementation of the Act
ever since its enactment in 1973 and were involved in discussions
about amendments in IS 78 and 1985.

The Peregrine Fund, Inc. is a nonprofit conservation
organization which was originally incorporated in the early 1970s
for the study and conservation of falcons and other birds of prey.
Today our mission has expanded to include a focus on birds
generally as "flagship species" for the conservation of nature.
Although we are best known for our pioneering work to restore
populations of the Peregrine Falcon by captive breeding and release
of propagated falcons back to nature, we have also been involved
with similar efforts to restore four other U.S. endangered species
and four foreign ones. In addition, we have carried out broader,
ecological studies on raptors and other birds in a dozen countries
around the world, notably in Greenland, Guatemala, Madagascar, East
Africa, and the Philippines. Recently we have become involved in-
a major research and propagation program for endangered forest
birds in Hawai'i.

Mr. Chairman, I have provided your committee with our latest
Annual Report for 1994, which gives details about all of our
current activities. I ask that it be included in the record of
this hearing. We are a small organization, but we get a lot done.

Restoration of the Peregrine Falcon

Because restoration of the Peregrine has become a model for
work on other species in our own organization, as well as for many
other groups around the world, I want to review briefly the history
of that effort, before considering some other successful "hands-on"
projects involving birds. The idea of breeding Peregrines in
captivity for species restoration emerged at a now famous
conference held at the University of Wisconsin in 1965. At that
conference experts from around the world became convinced that DDT
and other organochlorine pesticides had been responsible for
unprecedented population crashes of the falcon in both Europe and
North America during the 1950s and early 1960s. At that time, the

193

Peregrine had already vanished as a breeding bird from all
historically known nest-sites in the eastern third of the United
States and southern Canada, and by 1975 fewer than 50 pairs could
be found in the West. Arctic-nesting Peregrines in Alaska and
Canada had declined by 50 per cent of their earlier numbers.

Many scientists feared that the Peregrine might disappear from
most or all of its range in North America and Europe. Against that
background of concern, a number of biologists and falconers decided
that captive breeding -light be a way to save the bird. It had been
bred successfully once by a German falconer during World War II.

Fortunately, the first EPA Administrator, William Ruckelshaus,
rendered his landmark decision in 1972 to ban the use of DDT for
nearly all purposes in the USA, and a ban on dieldrin followed soon
after. Canada had made the same decisions even earlier. There was
hope that the environment would soon be clean enough for the
reappearance of the Peregrine, and that by proper release of
captive bred falcons, the vacant eastern range could be recaptured
and the greatly diminished numbers in the West could be increased.

Following the Madison conference, a group of my graduate
students and I began to gather in a collection of captive
Peregrines for breeding at Cornell University, and by 1970 we had
a "Hawk Barn" at the Laboratory of Ornithology on Sapsucker Woods
Road with 20 or so potential pairs. In 1973, the same year the ESA
became law, we produced our first young Peregrines. By 1975 we
were producing enough young so that experimental releases could
begin, and we needed money to move this work forward, as we had
barely made ends meet with a small research grant from the National
Science Foundation.

By then the ESA had been fully implemented. I looked at the
Act — I still have my original 1973 copy — and it seemed to me that
the meat of the law was right up front in the "Findings," where it
says, "The Congress finds and declares that. . .encouraging the
States and other interested parties, through federal financial
assistance and a system of incentives, to develop and maintain'
conservation programs which meet national and international
standards is a key to meeting the Nation's international
commitments and to better safeguarding, for the benefit of all
citizens, the Nation's heritage in fish and wildlife."

I considered The Peregrine Fund to qualify as "an interested
party," and so I went to the Fish and Wildlife Service and asked
for some money to release Peregrines. It turned out that the
Endangered Species Program only had $5.5 million in its budget for
FY-75, and the Peregrine was not high on the list of priorities.
I got a friendly pat on the back and sent on my way.

I then looked at the second page of the Act, and under
"Policy" I read, "It is further declared to be the policy of

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Congress that all Federal departments and agencies shall seek to
conserve endangered species and threatened species and shall
utilize their authorities in furtherance of the purposes of this
Act." Nothing coercive there, but the language seemed to allow for
some moral persuasion. So, I went to the U. S. Army at the Aberdeen
Proving Grounds in Maryland. I knew they had been doing some work
with Bald Eagles in the Chesapeake Bay, and there was a man there
with a passionate interest in Peregrines. He and I showed the top
brass this policy statement, and — to make a long story short — they
agreed to give me $15,000 if Fish and Wildlife would match it! I
went back to the Service; they thought it was a good deal, and The
Peregrine Fund ended up with its first federal contract for $30,000
to release Peregrines.

We also had help from the State of New Jersy that year, and
from the Massachusetts Audubon Society. We released 16 Peregrines,
including four from a .acommissioned gunnery tower on the Edgewood
Arsenal. It was our version of beating swords into plowshares.
Twelve of those falcons survived to return the following year.

That was the beginning of a remarkable national and
international cooperative effort to restore the Peregrine Falcon,
an effort, I believe, unparalleled in the annals of wildlife
conservation. For the past 20 years, all of the main federal land-
holding agencies have been involved both as funders and as active
participants in the field — the Fish and Wildlife Service, National
Park Service, Forest Service, Bureau of Land Management, U. S.
Army, and U. S. Navy. At least 30 state wildlife agencies have
participated, and several county and city governments — New York
City, Washington, D.C., Los Angeles, etc. Hundreds of non-
governmental organizations — universities, conservation groups,
foundations, utility companies, mining companies, oil companies,
timber companies, insurance companies, banks, and hotels — not only
funded work but in many cases provided locations for the release of
Peregrines. Several hundred summertime field-assistants, many of
them students, watched after the released falcons until they became
independent, wild hunters.

Briefly on the results of all this effort, more than 5,000
Peregrine Falcons have been released in five regional programs,
including Canada. In 1994 there were approximately 1,000 pairs in
the contiguous United States, about as many as there ever were in
this century, but their distribution is not the same. Now there
are more than 80 pairs nesting in urban areas, while other pairs,
are nesting on bridges or special towers in salt marshes. There
are many more naturally occurring pairs in the Southwest than there
used to be, but none along the major eastern rivers where Great
Horned Owls have taken over the old, rivev-bluf f eyries. In Arctic
Canada and Alaska Peregrines have increased to their pre-DDT
numbers, and in some places are more numerous than they were. The
entire story has been detailed in our book Peregrine Falcon
Populations, Their Management and Recovery published by The

195

Peregrine Fund in 1988.

Captive breeding and reintroduction cannot be credited for all
this recovery, because there has been a great deal of natural
increase from the remaining wild pairs following the reduction in
use of organochlorine pesticides, especially in the Southwest and.
Arctic regions. Even so, all of the 180 known pairs in the eastern
third of the continent south of the boreal forest are derived from
captive produced and released birds, and so too are all of the more
than 60 pairs in the Greater Yellowstone Ecosystem. Also, about
half of the pairs in the states of Colorado, California, Oregon,
and Washington wear bands identifying them as released birds. The
total is at least 3 50 reintroduced pairs in the United States. The
American Peregrine Falcon is now ready for removal from the list of
endangered species, and we expect to see it delisted this year.

A final point aoout the Peregrine program. In all these
activities across the length and breadth of our Nation, involving
so many diverse interests which came together for the common
purpose of restoring the Peregrine Falcon, we never had a major
conflict that could not be resolved by using common sense,
goodwill, and reasonable approaches. We never got involved in a
formal jeopardy consultation, the designation of critical habitat,
or any of the needless and disruptive conflicts we hear so much
about these days. There were no lawyers, no court injunctions —
none of that legal hassle.

I do not mean to imply that there were no problems. There
were plenty. I can remember specific cases involving highway
construction and blasting near nests, timber cutting, bridge and
building maintenance, rock-climbing on nesting cliffs, waterfowl
hunting around refuges where Peregrines nest, deliberate shooting
of falcons at pigeon lofts, and even problems with Peregrines
killing other endangered birds. But in all cases these conflicts
could be solved at the local level in the field through informal
consultations and agreements among the concerned parties. There
was no need for Big Brother to step in with a club.

Captive Breeding and Translocation of other Avian Species

The Peregrine Fund has carried out hands-on work with four
other endangered species in the United States. In 1976 and 1977 we
helped New York State launch a very successful effort to
reestablish Bald Eagles in that state by translocating wild-hatched
eaglets from nests in Wisconsin and Alaska. At the time only one
unproductive pair remained in New York. The first eaglets we
released at the Montezuma NWR paired and bred in 1980 and have
reared young every year since. State biologists went on to release
about 100 eaglets from Alaska, and today New York has 2 3 pairs on
territory, not to mention some others in adjacent states. Bald
Eagles have also been successfully reestablished in California and'
in Oklahoma and the south-central states.

196

We have also been breeding the Northern Aplomado Falcon ir
captivity and releasing the progeny on the Laguna Atascosa NWR ir.
south Texas. This species used to be common in the grassland-
savannas and Chihuahuan Desert region along our border with Mexico
but disappeared as a breeder north of the border in the 194 0s and
early 1950s. After releasing 43 falcons, this spring we have seen
the first pair in 50 years nesting in Texas.

In 1993 The Peregrine Fund became the third breeding center
approved by FWS for the California Condor, joining with the San
Diego and Los Angeles zoos. We house 10 pairs at our World Center
for Birds of Prey ir Boise, Idaho. Captive breeding of this
species has proved to je relatively easy, and as a consequence the
number of condors has increased from only 21 in 1987, when the last
wild birds were brought into captivity, to more than 100 this
spring. Considering the great controversy that raged over the
captive breeding of condors, this ;.mpressive number fully
vindicates the unpopulir decision to take the birds out of the wild
temporarily.

The reestablishment of condors in natural surroundings is
going to be much more complicated, and The Peregrine Fund will be
working actively on this problem. It is likely that the first
release of condors outside California will occur this fall in
northern Arizona.

More than 90 per cent of all bird extinctions since 1600 have
been on islands, and Hawai'i is no exception. Today half of all
endangered bird species inhabit these fragile, usually highly
degraded environments, and 19 native forest bird species are listed
as endangered in the Hawaiian Islands alone, most of them
critically so.

In 1992, the U. S. Fish and Wildlife Service and the State of
Hawai'i requested our help to conserve and restore the islands'
endangered birds, most of which are highly specialized and little
known. We began with the Hawaiian Crow or 'Alala on the Big
Island; only 11 crows still existed in che wild on the private,
McCandless ranch. By taking eggs from wild nests and hatching them
in incubators, rearing the young, and then releasing them back into
the forest, we have been able to double the wild population in two
years. Meanwhile, a captive population has also increased to about
15 birds.

In 1994 we entered into an agreement with FWS and the State to
design, build, and operate a captive propagation and research
facility on the Big Island for all endangered Hawaiian forest
birds, with reintroduction as the goal. Again, this is a
cooperative venture involving federal, state, and private
interests. The FWS is funding the facility, the National
Biological Service will conduct field research, the Bishop Estate
has provided the land, and The Peregrine Fund will manage and staff

197

the operations.

Overseas we have been doing similar work with the Philippine
Eagle, Harpy Eagle, Madagascar Fish Eagle, and the Mauritius
Kestrel, a small falcon endemic to this one Indian Ocean Island.
The kestrel represents one of the most diagrammatic and impressive
examples of how intensive management of a species can lead to
greatly improved population viability. When work started on this
species in 1973-74, the population had been reduced to fewer than
10 individuals, only two known pairs, and only one reproductively
active female, owing mainly to habitat loss and pesticides. Only
two other bird species, both island endemics, are thought to have
increased ntimbers significantly after such a severe bottleneck
leaving a single reproductive female — the Laysan Duck in Hawai'i
and the Black Robin in the Chatham Islands of New Zealand. By
slowly building up a captive population from wild eggs hatched in
the laboratory and then releasing the progeny, and later by also
harvesting wild eggs for hatching and returning the young directly
back to nature, the wild kestrel population has been increased to
at least 70 pairs and about 300 individuals, and we expect an
eventual population of some 200 nesting pairs on Mauritius. The
accompanying article by C. Jones et al. from Ibis_(1995) gives a
full account of this remarkable recovery, which has important
implications for the restoration of other critically endangered
island endemics.

Birds of prey have turned out to be especially amenable to
these sorts of highly manipulative procedures. In Europe, for
example, captive breeding and translocation have been used to
establish populations of the Goshawk, White-tailed Sea Eagle, and
Red Kite in Britain, the Griffon and European Black Vulture in
France, the Bearded Vulture in the Alps, Montagu's Harrier and
Lesser Kestrel in Spain, Peregrine Falcon and Eagle Owl in Germany
and Sweden, and the Pygmy Owl in the Black Forest of Germany.

Conclusions

I do not want to lead this committee astray with all these
stories of success. Many of my colleagues in conservation biology
have expressed strong reservations about the intensive approach to
single species management, preferring more holistic approaches
involving habitat preservation and management of ecosystems. They
make some valid points.

Captive breeding and translocation should not be viewed as a
panacea for all species. They are not substitutes for habitat
preservation and for equitable land-use practices that maintain
suitible living areas for wild species at the scale of regional
landscapes. Obviously there has to be suitable habitat remaining
before a species can be successfully reintroduced, and, indeed, the
more optimal and natural the habitat is the greater the chances for
reestablishment. Many species require special habitats that result

198

only from natural, ecological processes, and they can survive
nowhere else. Only a few species, such as the Peregrine, are
generalized enough in their habits to survive in highly modified or
new environments. Furthermore, only a few species can be bred
successfully in captivity, and of those that can be propagated in
significant numbers, only some can be successfully released to the
wild because of poor physical or behavioral characteristics
resulting from captivity.

Still, hands-on methods have worked well for some species.
They are perhaps best held in reserve as methods of last resort,
when the more conventional procedures of legal protection and
habitat preservation prove to be insufficient to prevent extinction
or to restore greatly diminished populations. These actions may be
called for when populations reach such critically low numbers that
any of several kinds of chance events (environmental, demographic,
genetic) could wipe out the entire species (e.g., California
Condor, Mauritius Kestrel, Black Robin) , or when wide-ranging
species become extirpated from large portions of their original
range with little likelihood for natural recolonization (e.g.,
Peregrine Falcon, Aplomado Falcon, Bald Eagle, Goshawk and Sea
Eagle in Britain, etc.). See the appended article by Cade and
Temple (Ibis 1995) for additional examples and discussion of the
role of hand-on procedures.

As better methods of husbandry for wild species in captivity
and for translocation are developed, we will see more successful
applications of these procedures, and as natural habitats continue
to disappear or to degrade owing to human impacts, we will see a
greater need for restorative actions for both plant and animal
species at the community level of organization. Restoration
ecology is an emerging discipline that will make significant
contributions to future conservation.

In short, captive propagation and translocation are just two
among many techniques for recovering endangered species. There is
no reason why they should be ranked as lesser or greater in
importance than other methods. As with any other method, they
should be used whenever there is a clear indication that species
survival and restoration will be aided by doing so.

To end my statement, Mr. Chaiirman, I want to comment on how
the Endangered Species Act has both helped and sometimes hindered
our recovery efforts. We hear a great deal these days about
problems with the Act — about economic hardships caused to
landowners and developers, and so on. I think it is understood by
our citizens that the benefits of species preservation and nature
conservation are not without costs, but I believe there is a simple
remedy for the more egregious burdens that have been placed on some
people. All that is required is to change the regulatory
definition of the word "harm," and bring its meaning back in
consonance with the other words with which it is associated in the

199

Act's original definition of "take." I am sure others have thought
about this solution too, but I do want to make sure it has been
called to this committee's attention.

The main area where The Peregrine Fund has encountered
difficulties has been with the permitting process required to do
research and management. The problem is compounded by the
overlapping and sometimes contradictory requirements for permits
under CITES, which the ESA enables, the Migratory Bird Treaty Act,
the Bald and Golden Eacle Protection Act, and the totally redundant
Wild Bird Conservation Act. As currently written and implemented,
the federal wildlife permitting regulations are too restrictive,
complicated, and time-consuming. Compliance costs us hundreds of
hours and thousands of dollars a year and discourages and inhibits
conservation of species. We have made some recommendations for
streamlining and simplifying the permit process by amendment to the
ESA, in order to minimize the burden on both the permitter and the
permittee, while still providing FWS with the necessary authority
to screen out inappropriate applicants and to handle violators.
These recommendations are in a memorandum to the Endangered Species
Task Force dated 25 May 1995, and I ask that they be included for
the record with my statement.

Turning to the brighter side, as I have already indicated, the
great strength of the ESA, aside from the moral and spiritual
imperative it places on the Government and the Nation to save
endangered species, are the provisions embedded within it for
cooperative actions to preserve and recover species. Section 6 of
the Act speaks to cooperation between the federal government and
the states. I would like to see this section strengthened and
funding for state actions increased in proportion to other
programmatic functions, especially in relation to consultation and
law enforcement. Further, I would like to see specific language to
include NGOs, such as universities and conservation organizations,
as cooperators.

The closest approach to such language is in Section 4(f)(2),
under "Recovery Plans," where it states that "The Secretary, in
developing and implementing recovery plans, may procure the
services of appropriate public and private agencies and
institutions, and other qualified persons." I am a strong believer
in getting the most qualified and dedicated people involved in
endangered species work, whether they be government employees,
university professors, or retired firemen. The Act needs to have,
maximum flexibility to involve all those truly gifted people who
have the "green thumb" and the zeal to succeed with the species
they know and love best. Thank you.

200
Conservation and Private Property

Remarks of

Rob Gordon

Executive Director

National Wilderness Institute

to the

Endangered Species Task Force

of the

Committee on Resources

€

Washington, DC
May 25, 1995

201

Introduction

Mr. Chairman, thank you for this opportunity to appear before the Endangered Species
Task Force of Committee on Resources to provide the views of the National Wilderness
Institute, a private conservation organization that is dedicated to using sound, objective
science for the wise management of natural resources.

The debate over the reauthorization of the Endangered Species Aa if often presented in die
simplified terms of those who are defenders of species and those who arc defending
themselves against an out of control and intrusive law. Critical questions are raised in such
discussions. However, it is important that during die consideration of the law that we
consider the fundamental question of whether the law has done what it was intended to do,
has it been good for wildlife. If not, how should we go about making it better?

The Endangered Species Act defines "conservation" as die use of all methods and
procedures necessary to bring listed species to the point at which the Act's protection is no
longer needed. Simply put, the Endangered Species Act was ostensibly designed to
recover and delist animals and plants that were determined to be in danger of extinction and
added to the Federal list of endangered and threatened species. FWS recognizes tiiis by
their statement that, "The principal goal of the U.S. Rsh and Wildlife Service and die
National Marine fisheries Service is to return listed species to a point at which protection
under the Act is no longer required."

Failure to Recover

Unfortunately, although the status of some species has unproved during the time the Act
has been in effect, to date not one species has been taken off the list as a result of
successful ESA recovery efforts. Although eight (seven and one population) species have
been officially termed "recovered," in each case "data error" (meaning putting if on the list
was a mistake) or recovered because of factors unrelated to the Endangered Species Act
would be a more accurate explanation for delisting. Each of these cases is summarized
below.

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Palau Birds: Three of the official 'recovered' species are birds on a the tiny North Pacific
island of Palau. However, according to the General Accounting Office, diese birds actually
owe their 'recovery' to the discovery of additional birds.

Rydberg nodlkveteh: Another formerly listed species now officially termed as recovered
is the Rydberg milk- vetch. This plant, however, should have had its delisting attributed to
'data error'. John Turner, former FWS director revealed during a Senate hearing that the
Rydberg milk-vetch was delisted because "fiirther surveys turned up sufficient healthy
populations."

Gray whale: Another on of the Act's claimed recoveries is the gray whale. Although it is
true the gray whale's population is at an all-time high in the Pacific for the time frame for
which we have data, its population has been growing since 1890 (83 years before the ESA
was adopted), tripling from a low of fewer than 5,000 to approximately 14,000 three years
before the Act became law.

American alligator: While some still consider die Alligator a recovery, including the
National Wildlife Federation, before controversy around the Act began to heat up even the
National Wildlife Federation admitted in its magazine that the "familiar and grati^ong"
recovery story of the alligator was "mostly wrong."

Eastern brown pelican and Arctic peregrine falcon: Many ornithologists consider the
banning of DDT, which preceded and was unrelated to the Endangered Species Act, as the
primary reason for the resurgence of the Eastern brown pelican and the Arctic peregrine
falcon. Likewise, in announcing the delisting of the Arctic peregrine falcon, FWS Director
primarily credited the DDT ban for the bird's recovery .

Bald Eagle: Although the bald eagle has not been delisted many of the Act's advocates arc
hailing it as a success example. Recentiy, however, the National Audubon Society stated
"Nearly everyone agrees that die key to the Eagle's resurgence- even more dian the
Endangered Species Act- was the banning of the insecticide DDT in this country in
1972. .. " Additionally, Fish and Wildlife data show a dramatic decline in the number of
eagle deadis attributable to shooting, from 62% to 35%, in the decade preceding passage of
the Endangered Species Act

No Positive Trend

Not only do we have no legitimately recovered species but also little if any indication that
the Act is generally improving the status of any listed species. In its December 1990
Endangered and Threatened Species recovery Program: Report to Congress the Service
made the statement that :

"Species listed longer appear to have a better chance of becoming stable or improving. "

What this statement leads one to believe is that species listed longer have lower rates of
population decline and therefor the Act is, if not yet leading to recoveries, heading in that
direction. However, several years after the issuance this initial report FWS remains unable
to substantiate this claim. In response to criticism about this statement, the Service sought
refuge in the assertion that graph in the report used to illustrate this assertion " was... a
'qualitative' visual rather than a product of specific statistical analysis." And although the
recently retired Deputy Director of the Service, Dick Smith has stated that the word
"appears", as it was used in this assertion, is a "weasel word" because of the lack of
additional supporting d?^ta, the Service has not retracted this claim.

% 'Stable' or 'Improving' Is Not a Meaningful Indicator

Rather, in its most recent Report to Congress, the Service has highlighted the number of
species which it has categorized as "stable" or "improving" with the clear intent that this be
interpreted as showing the Act is leading towards recovered species. This, however, is a
faulty assumption for several reasons.

First, the determinations of 'improving' and 'stable' are purely qualitative measurements.
One species could increase from 5 individuals to 6 and it could be called 'improving.'
Another could go from a population of 1,000,000 to 999,999 and be called 'declining.'
Clearly this information is not too useful without also having quantitative data.

Secondly, there are no established or public guidelines as to what measurements are used to
determine status. According to the Service this categorizing may be based on nothing more
than a biologist's opinion.

204

Thirdly, there is a fundamental fallacy in the argument that because some percentage of
listed species is categorized as being 'stable' or 'improving' at any particular moment one
can assume that the implementation of the Act has resulted in a positive trend. This is an
attempt to claim success based upon data that presents nothing more than a "snapshot"
Essentially, this is like showing a still photograph of a car and arguing it is going fast
From the photo we cannot determine that it is going fast In fact we cannot determine if it
is moving at all or even its direction. In its most recent report the Service presents no data
describing the status of species throughout intervening years of listing or any data
specifying species' rates of improvement or stabilization in their years of listing — which are
indispensable reference points if one is to discern trends in species recovery.

If it were an absolutely safe assumption that all species are declining when added to the list
then simply stating how what percent of species are later deemed 'stable' or 'improving'
might mean something. However, for at least two reasons, this assumption cannot be
made.

Poor Listing Criteria

First the law does not require that the population trend of a species be negative for the
species to be added to the list Sec. 4<a)(l)(A-E) lays forth that a species may be listed,
among other reasons, because of " . . . threatened . . . modification of habitat or range . . .,"
"... overutUization. ..." "the inadequacy of existing regulatory mechanisms . . .," or "other
natural factors . . . affecting its continued existence ..." It arguable whether anything
escapes the first criteria of threatened habitat modification. The meaning of the second
criteria, "overutilization" is defined by the opinion of the regulator. The third mentioned
criteria is not a reasonable justification for animals or plants which may be otherwise doing
fine. Just because there might not be federal authority to regulate earthworms does not
mean they are endangered. And as regards the last mentioned criteria, it is a bit of an
impossible guideline for our current policy. For example, for one endangered invertebrate,
the Iowa Pleistocene snail, the current government plan calls for conserving its remaining
habitat until the next ice age.

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B. A. D. or
Best Available Commercial and ScientiHc Data

Second, under the current program the evidentiary standards for listing are, in a word, bad.
I use the word bad because it is an apt acronym for the standards which under Sec. 4
(b)(1)(A) are "...best scientific and commercial data available..." The problem with best
available data, or BAD, is that best is a comparative word. Thus the data need not be
reliable, conclusive, adequate, verifiable, accurate or even good.

As the number of listed species now approaches 1000, with thousands of official
candidates in the wings, we are finding that the current standards often lead to mistakes.
Reviewing these 'data errors' makes a strong argument against the B.A.D. standard and
clearly demonstrates that all species arc not declining when added to the list

Indian flap-shelled turtle: Regarding one 'data error', the Federal Register states: "As a
result of the Indian flap-shelled turtie's inclusion on Appendix I of CITES [a United
Nations endangered species list] the Service subsequendy listed the species as
endangered." After listing, rather than before, a ". . .literature review was conducted to see
if supporting evidence justified its current endangered status. No such supporting data
could be found." In a further attempt to find supporting information, the Service then
contacted turtle experts such as Dr. E. O. Moll, who happened to be researching in India at
that time. Moll stated that it was "seemingly the most common and widespread turtle in all
of India . . . How it ever made Appendix I is a big mystery."

Pine Barrens tree frog: The case of another 'data error,' the pine barrens tree fi-og, is
similar. Only those pine barrens tree frogs foimd in the frog's southern range were listed.
After listing, FWS wo±ed with Florida officials to gather information about how many
ft-ogs actually existed. According to the Federal Register, "Data were presented which
expanded the species' known Florida distribution from 7 Okaloosa County sites to a total
of over 150 sites. . ." in 3 counties. Further studies including Alabama areas revealed a total
of 165 more sites than were believed to exist when a fiaction of this fi^og's population was
listed — an error of more than 21 in magnitude.

Mexican Duck: The Mexican duck, another 'error', was determined to be essentially a
"blue-eyed version"[not literally] of a common duck, the mallard. The Federal Register
states "all reports and observations of 'Mexican ducks' in the United States and Northern

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Mexico must now be interpreted to be of only 'Mexican-like ducks'" and that '"Mexican
ducks' ... are only identifiable segments of the entire population, just as brown-eyed and
blue-eyed individuals are phenotypic segments of the human species."

Tumamoc globeberry: The mmamoc globeberry, a vine which is the most recent 'data
error,' was delisted by FWS on June 18, 1993. After including diis plant on the
endangered species list for 7 years, fWS determined, "surveys have shown Tumamoc to
be more common and much more evenly distributed across its range than previously
believed. . .." Although never really endangered, during its 7 years on the list this plant over
$1.4 million in funds from the Corps, BLM, DOD, NPS, USPS, and the Bureaus of
Indian Affairs, Mines and Reclamation were expended on the plant and it was the basis for
FWS to issue a jeopardy opinion on the Tucson Aqueduct

According to a recent planned budget, 40 species will soon be considered for delisting.
However, in many of these cases the most acceptable reason for delisting is again bad data.
For example, in the case of the Maguire daisy, the Unita Basin bookless cactus and the
Wright fishhook cactus, FWS has discovered greater "species abundance," "additional
populations," greater "range distribution," and even that a 'variation' formerly thought to
be distinct was not distinct at all.

These are only a sample of many bad listings or data errors that are not 'declining' species.
Others possible data errors are not even under consideration for delisting. For instance, in
regard to spotted owls, a National Audubon Society Blue Ribbon Panel concluded in 1986
that "it is likely that there are between 4,000 and 6,000 individuals in the Pacific states."
Since that time surveys have indicated much greater numbers such as 6,849 owls in
Washington and Oregon alone with an additional 3,234 owls in California — over 10,000
northern spotted owls not including the thousands of Mexican and CaUfomia spotted owls.

Little Data Available Regarding Many Listed Species

Furthermore, in a comprehensive review of 306 recovery plans many showed there was
littie information about the status of listed species. Following are a few example drawn
from USFWS approved recovery plans:

Cave Crayfish: 'Sufficient data to estimate population size or trends is lacking.'

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Kentucky Cave Shrimp: The very small estimated population size of the species
at the time of listing (approximately 500 individuals) made it stand out as being
extremely vulnerable to extinction. Since the time of listing, new populations have
been discovered... Population estimates.. .range from approximately 7,000 to
12,000 individuals.'

Red ffills Salamander: There is no evidence that the animal has occurred outside
its present range within historic times...' and 'Comparative data relating temporal
trends in population densities are unavailable...'

Painted Snake Coiled Forest Snail: "Information on the snail's ecology and
natural history is almost completely lacking.'

In FWS's latest Endangered and Threatened Species Recovery Program: Report to
Congress only qualitative information about species is included and there is not even a
qualitative 'guesstimate' for about 27% of the listed species. This is an increase of 7.6%
from the previous report. This high and increasing percent of 'unkowns' in combination
with the facts that there has been a history of mistaken listings, that listing criteria are low
and tiiat criteria standards arc the absolute minimal suggests that the number of species
which continue to be wrongly listed may be quite significant

Usefulness of Many Recovery Plans Questionable

In addition to the fundamental structure of the law being flawed as concerns promoting recovery of
endangered species as will addressed latter, some of the information reveled in recovery plans
leads one to question about the future prospects of any species being recovered because of the
management actions taken under the Endangered Species Act In a study reviewing the 306
recovery plans written between 1970-1993 which covered 58 invertebrates, 23 reptiles, 8
amphibians, 57 fish, 72 birds, 35 mammals and 135 plants several important and disturbing
findings were made including:

Recovery Plans often conflict with the definition of "conservation" in the Act by
stating that recovery is unlikely or impossible. The Endangered Species Act defines
"conservation" as the use of all methods and procedures necessary to bring listed species to
the point at which the Act's protection is no longer needed. FWS states that, "The principal
goal of the US. Fish and Wildlife Service and the National Marine Fisheries Service is to

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return listed species to a point at which protection under the Act is no longer required."
Several recovery plans, however, conclude that delisting is unachievable or even not
"desirable."

Examples:

Cave Crayfish: "Due to the apparent limited potential for discovering new
populations, the delisting objective may never be attainable."

Florida Scrub Jay: "Because of the extreme usefulness of the Act in this case, it is
not desirable to remove the scrub jay from protection under the Endangered Species
Act" "There is no anticipated date of recovery because it may never be feasible to
delist this species."

Mexican Wolf: "...the Mexican Wolf Recovery Team sees no possibility for
complete delisting of the Mexican wolf."

Red HOI Salamander: [delisting] "may not be attainable within the foreseeable
future because of the animals small range..."

Ring Pink Mussel: "Total recovery is not thought possible."

Spikedace: "Protection of existing population. Eventoal delisting, if possible."

Tar River Spinymussel: "Though the ultimate goal is to recover the species to the
point where it can be removed from the Federal List of Threatened Wildlife and
Plants, full recovery of the Tar River Spinymussel may not be possible."

Tuberculed-Blossom, Turgid-Blossom & Yellow-Blossom Pearly Mussels: "it

is highly improbable, if and when living specimens of any one of die three subject
species arc found that., the species can ever recover to the point of delisting."

White Cat's Paw Pearly Mussel: "...recovery to the point where the species no
longer requires protection under the Act is unlikely."

Plans often have criteria for "delisting" or "downlisting which appear
unattainable.

Iowa Pleistocene Snail: "With a return to glacial conditions it will be resusciuted
over the major part of the upper Midwest, provided its relictual areas are preserved
and maintained..."

Mount Graham Red Squirrel: "...at least 100 to 300 years will be necessary to
restore Mount Graham red squirrel habitat"

Stock Island Snail: "Although no estimates of historical population sizes are
available, the extant population is presumed to have been moderately stable in the
recent past because its present habitat has been stable...for the last 40 years...4.8
acres." Recovery criteria called for expanding the snail's population from the only
known 4.8 acre habitat to 20 acres and establishing 30 new populations.
"Hopefully, the 'recovered' population would then be able to withstand the major
stress of severe hurricane."

Utah Prairie Dog: "To establish and maintain the species as a self-sustaining,
viable unit with retention of 90 percent of its genetic diversity for 200 years."

Plans often call for enormous habitat purchase. Of the 306 plans reviewed, at least
184 call for the purchase of 'securing' of property for endangered species.

Examples:

Blunt-Nosed Leopard Lizard: "A current target acreage figure of 30,000 acres
has been established for the San Joaquin Valley floor, with acquisitions emphasis
on optional habitats containing high density blunt-nosed leopard lizard (BNLL)
populations in identified "priority" habitat areas...conflicting land users will be
reduced or eliminated in an effort to restore habitat to optimal condition.
Gonsideration for delisting would be appropriate when similar objectives have been
obtained for adjacent foodiill and plain areas known to contain BNLL populations."

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Eastern Indigo Snake: "two 10,000-acre tracts lecommended for acquisition: one
in GA, one in FL."

Loggerhead Turde: Recovery criteria require tliat "25% of all available nesting
beaches (560 km) is in public ownership..."

Plans often call for additional laws and regulations or the employment of legal tools
other than the Act Of the 306 plans reviewed in this study, at least 51 called for or
suggested that additional laws or regulations be considered to protect a particular species.
Numerous plans called for the application of other laws such as the Clean Water Act or
consideration for the application of other federal laws such as designated a Scenic River to
protect a species. Additionally, numerous plans called for encouraging, requesting or
otherwise influencing state or lower level governmental entities to pass regulations, employ
other laws or enforce ordinances, such as zoning laws, as a tool to protect listed species.

Examples:

Cumberland Monkeyface Pearly Mussel: "Investigate the use of Scenic River
Status, mussel sanctuaries, land acquisition..."

Florida Golden Aster: "Arrange for protection of land through ownership,
cooperative agreements with landowners or other legal measures."

Key Tree Cactus: "Local ordinances should be employed to prevent taldng from
non-federal lands."

Painted Snake Cdled Forest Snail: "The species cannot be fully secure without
some control of land use in the cove." "If landowners are not in agreement,
investigate other options for protecting habitat"

Blunt-Nosed Leopard Lizard: "Use zoning process and ordinances."

Swamp Pink: "In addition, the enforcement capability of existing regulations will
be strengthened where possible, and nontraditional avenues for endangered species
protection that may benefit Helonias (through wetlands legislation, soil erosion
control requirements, etc.) will be investigated."

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We Can Conserve Species In Peril

The poor record of the Endangered Species Act does not mean that we cannot conserve
endangered wildlife. Compare the results of the ESA's regulatory and punitive approach
which with the record of voluntary, incentive based efforts which benefit greatly from
private property. Wood ducks and bluebirds came back from very depressed numbers
because thousands of people built artificial nesting boxes on their private property.

Wood duck boxes built by duck hunters and placed in swamps are actually better than
hollow trees at keeping out predators such as snakes and raccoons, and as a result of these
boxes there are now over three million wood ducks in America - enough to support an
annual harvest of over eight hundred thousand ducks.

When bluebird fanciers discovered about thirty years ago diat their favorite bird was
declining primarily because the English starling, an aggressive, introduced species, was
taking too many of the bluebird's nesting cavities, they designed bird houses with openings
too small for starlings. In the last 15 years, over one hundreds thousand bluebird houses
have been built and bluebirds arc on the rebound.

During the past 20 years, wild turiceys have been restored from severely depleted numbers-
to their original range and beyond at the impetus of turkey hunters. Today, wild turkeys are
found in every state except Alaska. The turkey population is at an all time peak and
growing. And the hunters who organized the restoration effort are now able to harvest five
hundred thousand birds annually.

Why are these private efforts so much more successful than the Endangered Species Act ?
Consider die difference between incentives and regulation. Suppose the Endangered
Species Act had been adopted early in this century - wood ducks, bluebirds and wild
turkeys would have been added to die federal list and regulated under this law.

How could one convince a landowner to give permission to put a nesting box on his
property?

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How many landowners could afford to let the Wild Turkey Federation release birds on
their land if the presence of an endangered species meant they could no longer use their
land?

Through the implementation of law upon heavy handed regulation backed up by punitive
measures we have created a climate which pits rare plants and animals against property
owners. As a result, they both.

An Example of Perverse Incentives

The experience of Ben Cone, a North Carolina timber land owner is a good example. Mr.
Cone has always tried to harvest trees in a way that provided habiut for wildlife. Campers,
hunters and fishermen have used his land because he believes wildlife, tree farming and
outdoor recreation are compatible. But, when the endangered red-cockaded woodpecker
arrived on his property, the Endangered Species Act put 1,000 acres of his property off
limits to him. He has spent $8,000 on biologists to make sure he is following the stringent
rules, and figures he has lost $1.8 million dollars in timber that is tied up in the area he
cannot harvest He is prohibited firom harvesting these trees because they have reached an
age at which they attract red-cockaded woodpeckers. As these trees become older the inner
wood often becomes softer and thereby good insect hxmting ground for woodpeckers.

Now, because of the perverse incentives of environmental regulation, Mr. Cone has been
forced to ensure that no more of his property is taken because his trees become old enough
to attract woodpeckers. To protect himself, Mr. Cone must harvest his remaining trees at
an earlier age. The end result is diat all loose. Mr. Cone has lost part of his property and
has reduced management options on the remainder. The red-cockaded woodpecker has lost
because once the trees now off limits to Mr. Cone are gone there will be no more habitat
generated on Mr. Cone's property because he cannot afford to allow his trees to get too
old. And, the taxpayer looses because dollars spent on regulators ended up harming the
very bird they were spent to protect

Awakening to the Adverse Conservation Impact of the Act

Not only are those who have long been critics of the Act pressing this point but also some
who have, until recently, argued that the law functioned the way it should. Michael Bean

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of the Environmental Defense Fund, for example, recently told a US Fish and Wildlife
Service employee training session:

There is, however, increasing evidence that at least some private
landowners are actively managing their land so as to avoid potential
endangered species problems. The problems they are trying to avoid are the
problems stemming from the Act's prohibition against people taking
endangered species by adverse modification of habitat And they're trying
to avoid those problems by trying to avoiding having endangered species on
their property. . . . Now it's important to recognize that all of these actions
that landowners are either taking or threatening to take are not the result of
malice towards the red-cockaded woodpecker, not the result of malice
towards the envirorunent Rather, they're fairly rational decisions motivated
by a desire to avoid potentially significant economic constraints. In short,
they are really nothing more than a predictable response to the perverse
incentives that sometimes accompany regulatory programs, not just the
endangered species program but others. So that's point one, that the
strategies that have been used to date to conserve this species, the red-
cockaded woodpecker, on private lands have probably contributed to the
loss of the ecosystem upon which that bird depends.

Similarly, Larry McKinney of Texas Parks and Wildlife Department recently stated:

I am convinced that more habitat for the black-capped vireo and especially the
golden-cheeked warbler has been lost in those areas of Texas since the listing
of those birds than would have been lost without the Endangered Species Act
at all.

Clearly there is increased recognition that the Act is not only failing in some incentives but
resulting in die opposite of what was intended.

Conclusion

Based upon the data available from USFWS, it is clear the Act has not yet produced the
intended results and there is little evidence that the passage of more time, the expenditure of
additional funds or more aggressive use of the same types of policies will change that The

214

old way has been a failure for endangered species and for people. It has not led to the
legitimate recovery of a single endangered species while costing billions of dollars and
tremendous harm. The old way destroyed trust between people and our wildlife officials.
We need to reestablish trust so that we can conserve wildlife - no program wiU succeed
without the support of our fanners, our ranchers - of citizens. The old law failed because
it is based on flawed ideas. It is founded on regulation and punishment If you look at the
actual law by section you see it is all about bureaucracy - consultation, permits, law
enforcement . . . there isn't even a section of the law called "conservation", "saving" or
"recovery". It is a bureaucratic machine and its fiiiits are paperwork and court cases and
fines - not conserved and recovered endangered species - what aU Americans want to see.

The future of conservation lies in establishing an entirely new foundation for the
conservation of endangered species - one based on the truism that if you want more of
something you reward people for it not punish them. The debate that is unfolding here and
before the public is one between methods of conservation. The old way is shackled to the
idea that Washington bureaucrats can come up with a government solution through national
land use control. Its supporters do not want to acknowledge that the law has failed because
doing so would mean an end to the influence and power they have under the old system.
The other promotes a new way that can actually help endangered species because it stops
punishing people for providing habitat and encourages them to do so. It creates an
opportunity for our officials - for government - to reestablish trust and work with and earn
the support of citizens.

As many other government programs are finally facing long overdue scrutiny and the
prospect of reform, it is most appropriate that this Committee review a law that has been a
conservation failure for over two decades. I commend the Chairman and the Task Force
Chairman for addressing this issue, for providing so many opportunities for interested and
affected Americans to participate and for their dedication to promote reforms that are
meaningful to both wildlife and people.

215

OPENING STATEMENT

MICHAEL T. CLEGG

Chair, Committee on Scientific Issues in the Endangered Species Act

Public brieflng to release the National Research Council report
Science and the Endangered Species Act

Thank you for joining us this morning for the release of this National Research Council
study regarding the scientific aspects of the Endangered Species Act. The committee that my
colleagues and I represent includes a wide spectrum of expertise in areas such as ecology,
population biology, systematics, paleontology, wildlife management, law, decision analysis, and
economics We come from universities and private industry Some of us have government
experience Our report is a consensus statement that reflects the range of our perspectives, and
we all agree with its conclusions and recommendations.

Our study was initiated by the National Research Council nearly two and a half years
ago in response to a bipartisan request from three congressional leaders — former House
Speaker Thomas Foley, Senator Mark Hatfield, and Representative Gerry Studds This was a
most welcome request, because sound public policy often depends on sound science

216

In broad terms, we were asked whether the Endangered Species Act conforms to
contemporary scientific knowledge about habitat, risks to species, and identifying species,
subspecies, and other biological groups below the species level We also were asked to consider
whether the Act conforms to what we know about the factors needed for recovery of endangered
species, possible conservation conflicts between endangered species, and the timing of key
decisions under the Act.

The 1973 Endangered Species Act and its amendments constitute the broadest and most
powerful law in this nation to protect endangered species and their habitats The survival of
species such as the whooping crane, American peregrine falcon, southern sea otter, and black-
footed ferret attests to the Act's success. But it is also a controversial law, particularly in cases
where its implementation has delayed or prevented public and private development and other
economic activities Many of these conflicts have played out in the public-policy arena and in
the courts

The distinction between science and public policy is often fuzzy, because the possession
of scientific knowledge and the implementation of that knowledge are so closely linked But we
have endeavored to restrict our advice to the scientific aspects of the Act. We were not asked to
comment on the social and political decisions concerning the Act's goals and trade-offs, and
have not done so. Nonetheless, we believe that some of our recommendations, if adopted, will
improve the Act's implementation and will make some of the trade-offs easier to understand and
resolve

Since the Act was first passed, scientific knowledge has been anything but static Our
understanding of biological species, in terms of their genetic makeup and evolutionary heritage,
has greatly expanded during the past two decades A rich array of new experimental tools has
been acquired from both genetics and computational biology and has helped drive a revolution in
the study of the diversity of organisms and their natural relationships Likewise, developments
in conservation biology and population genetics have greatly increased the scientific

217

understanding of risk to endangered species We believe that these new tools should be put to
work to inform decisions associated with the Act

Nevertheless, our committee finds that there has been a good match between science and
the Endangered Species Act Given new scientific knowledge, we simply recommend changes to
improve the Act's effectiveness.

The ultimate goal of the Endangered Species Act is to ensure the long-term survival of a
species We all know that species extinctions have occurred since life has been on Earth But
the current rate of extinction is among the highest in the entire fossil record, in large part
because of human activity. The introduction of non-native species and especially the
degradation and loss of habitat are causing extinctions at a rate that many scientists consider a
crisis

The relationship between vanishing habitats and vanishing species nationwide is well
documented Consequently, protecting species in the wild most often means conserving the
habitats where they live and breed The Act's emphasis on protecting habitat reflects current
scientific understanding of this crucial relationship.

We endorse the regionally based, negotiated approaches to the development of habitat
conservation plans provided for by the 1982 amendments to the Act. Although difficult to
negotiate, because they require agreement among many contending parties, such plans are
already in use in several regions of the country to protect endangered and threatened species.
The US Fish and Wildlife Service should provide guidance on obtaining the necessary-
biological data and other information to help develop these plans

The 1978 reauthorization of the Act requires the identification of "critical habitat"based
on the best available science, after the consideration of economic and other relevant impacts
We realize that detailed information needed to designate critical habitat for a given species often
is lacking Just because a species occurs within a habitat does not necessarily mean that it
requires that habitat for survival To complicate matters, the absence of a species from a given
habitat does not mean that the habitat is not critical to the survival of the species These

218

uncertainties, combined with public concern over economic consequences, often make
designating critical habitat both controversial and arduous This can delay or even prevent
protection

To avoid such situations, we recommend that when a species is listed as endangered, a
core amount of "survival habitat" should be protected as an emergency, stop-gap measure —
without reference to economic impact This survival habitat should be able to support either
current populations or the population necessary to ensure short-term survival for a period of 25
to 50 years When the required recovery plans are adopted or the required critical habitat is
identified and designated, the survival-habitat designation should automatically expire.

Shrinking amounts of available habitat are creating conflicts between what is needed to
protect different species in the same region, though such conflicts have been rare in the past.
The most effective way to avoid conflicts is to maintain protected areas large enough to allow
for the existence of diverse habitats within a single area

There is no scientific reason that standards relating to protecting habitat and species
should differ on public and private lands As our report says, the degree to which public and
private entities should bear the responsibilities of the Endangered Species Act is a policy and not
a scientific matter But there is no escaping the scientific conclusion that all species have
certain requirements no matter who owns the habitats. Public and private landowners do not
always respond in the same way to laws, regulations, and other incentives As a result,
regulations applied equally on both public and private lands might not provide the same degree
of species protection For this reason, different management policies may be required for them

Our committee also was asked about the definition of species The question of what
constitutes a species under the Endangered Species Act can be difficult to answer, requiring
scientific interpretations about subtle differences m the physical, genetic, or behavioral
characteristics that distinguish subgroups within a species from one another We believe that the
Act's inclusion of these distinct population segments is scientifically sound and should be
retained

219

But to provide greater scientific objectivity in identifying these population segments, we
recommend using the concept of "evolutionary units"' that identify biological groups with
distinctive behavioral and genetic characteristics, and that possess the potential for a distinct
evolutionary future. By focusing attention on the important, distinctive attributes of organisms,
the use of evolutionary units would provide policy-makers with an additional scientific basis for
determining which groups of plants and animals merit protection.

The scientific identification of evolutionary units should be made independently from
decisions about whether they need protection. What I mean by this is that although there may be
persuasive reasons unrelated to science to protect certain plants and animals, there might not be
scientific reasons for listing them as evolutionary units. For example, bald eagles in the lower
48 United States and in Canada intermix and are not biologically distinct, so there is no
scientific justification for identifying the U.S. population as an evolutionary unit.

We believe that the recovery plans designed to achieve the goals of the Endangered
Species Act often are developed too slowly or have provisions that cannot be justified
scientifically To ensure that these plans are effective, the US Fish and Wildlife Service, which
oversees each plan, should establish explicit guidelines for developing them Species recovery
plans should include as much guidance as possible concerning which human activities are likely
to harm recovery and which are not, to enable people to plan economic activities Also, for
purposes of evaluation, plans should incorporate estimates of the probabilities of achieving
various recovery goals over different periods of time

The Endangered Species Act was not designed to carry out all of our country's
conservation policies More approaches need to be developed and implemented as complements
to the Act to prevent the continued, accelerating loss of species and to reduce economic and
social disruption and uncertainty The Endangered Species Act by itself cannot prevent the loss
of all species and their habitats, but should be viewed as one essential part of a comprehensive
set of tools for protecting them

220

Many federal, state, and local governments and private organizations are developing such
approaches, including cooperative management strategies that involve shared decision-making
among several government and non-government groups, the large-scale management of
ecosystems and landscapes; the reconstruction or rehabilitation of damaged ecosystems, the
development of mixed-use areas that provide for human activities as well as wildlife habitat; and
the use of various market-based economic incentives.

In general, we hope that our recommendations can help make the implementation of the
Act more effective at protecting endangered species, more predictable, and less disruptive for
everyone We believe that there is a common ground for a more enlightened and cooperative
public conservation policy

Thank you very much I will now ask my colleagues to make a statement, and then we
will be pleased to answer your questions Please let us know who you are by stating your name
and affiliation before you ask a question.

221

STATEMENT OF

DR. WILLIAM Y. BROWN

RCG/HAGLER BAILLY, INC.

HEARING ON REAUTHORIZATION OF
THE ENDANGERED SPECIES ACT

BEFORE THE

ENDANGERED SPECIES ACT TASK FORCE

HOUSE RESOURCE COMMFTTEE

May 25, 1995

My testimony gives perspectives on the National Research Council report on Science
and the Endangered Species Act (NRG Report), released on May 24th, and also
comments on corporate biodiversity programs generally.

The NRC Report was initiated by a letter to the President of the National Academy
of Sciences in November 1991 from Senator Mark Hatfield, Representative Tom

Foley and Representative Gerr>' Studds. The letter requested a study of several issues
related to the Endangered Species Act. Funding was provided by the U.S. Fish and
Wildlife Service in September 1992, and the NRC convened the Committee on
Scientific Issues in the Endangered Species Act (Committee) to prepare a report. I
am a member of that Committee.

The November 1991 letter asked questions on six issues: definition of species;
recovery planning; role of habitat conservation; conservation conflicts between

92-551 - 95 - 8

2
species; risk; and issues of timing. I will comment on the first three items here, and
will try to answer questions on the others if you have them. The NRC report
addresses each issue in detail.

The Species Concept

On the definition of species, the Committee recommended that the concept of the
evolutionary unit or EU be adopted. As recommended, an EU is a group of
organisms that "shares a common evolutionary lineage and contains the potential for
a unique evolutionary future." Most discussion was on how to define "distinct
population segments" of vertebrates, which are eligible for listing under the ESA.
The Committee members concluded that animals and plants generally will meet the
definition of an EU if they have been described as species or subspecies in a
conventional way. Furthermore, the Committee found no scientific basis for giving
animals more protection than plants under the ESA.

Recovery Planning

The Committee was concerned that recovery planning under that ESA has been too
slow, often done without consideration of how sections 7, 9 and 10 are to be
implemented, and without realistic budgeting. Doing a better job would benefit all
concerned. To this end, Lhe NRC Repon recommends that all recovery planning
include "recovery plan guidance," which addresses activities anticipated for review
under sections 7, 9 and 10 of the ESA. To the degree possible, this guidance should

223

3
identify activities that can be assumed to be consistent with the requirements of those
sections, activities that can be assumed to be inconsistent with them, and activities
that require individual evaluation. The idea is to clear the deck of issues for which
regulators already know, or should know, the answers.

Habitat and Conservation

The NRC Report observes that conservation of species diversity is directly associated
with habitat conservation. It finds that habitat protection is a prerequisite for
conservation of biological diversity and protection of endangered and threatened
species, and that the ESA, in emphasizing habitat, reflects the current scientific
imderstanding of the crucial biological role that habitat plays for species.

Beyond the Endangered Species Act

The NRC Report also concludes that the ESA cannot by itself prevent all species
extinctions, and that addiiionai approaches lo natural resource management are
needed thai do not depend on listing individual species. These are essential to
stopping endangered species "train wrecks." Many programs akeady exist for public
land biodiversity management, and a few government programs support partnership
conservation activities with the private sector. These private sector partnership
programs are by imitation only from landowners and to my knowledge have been
welcomed by them. The Task Force should note that at least one of them, the Fish
and Wildlife Service Partners for Wildlife program, has been proposed for extinction

224

4
itself. This is exactly the kind of program that should be continued and enhanced if
our country is to get beyond the important but last ditch triage of the ESA.

Many private sector biodiversity conservation efforts also are being undertaken by
businesses entirely with their own money and without regulatory mandate. I played J
a significant role in setting up a biodiversity conservation program for one major
company, which adopted a policy of "no net loss of wetlands or other biological
diversity" on its properties worldwide. Recently I helped to organize workshops on
corporate biodiversity programs involving more than 20 major companies. Most are
implementing substantial programs to advance conservation of nature (including
endangered species) on their properties. Many activities are not mandated by law.
The ESA was not part of these workshops, and these firms differ in their opinions of
the regulatory mechanisms of the statute. However I think it is safe to say that most,
if not all, of the company participants recognized great value in animal and plant
species, and accepted as a stewardship ethic the responsibility not to contribute to
their extinction.

15105 Watergate Road
Silver Spring, MD 20905
14 March 1995

The Honorable Richard Pombo

Chair, ESA Task Force

c/o Elizabeth Megginson, Counsel

Committee on Resources

U.S. House of Representatives

Washington, D.C. 20515

Dear Congressman Pombo:

I am writing in regard to the hearings your ESA Task Force is holding

concerning reauthorization of the ENDANGERED SPECIES ACT. I respectfully

ask that this letter and the appended materials be included as a part of the
hearing record.

As a practicing biomedical scientist involved with the discovery of novel
treatment modalities for human disease, I wish to make known to the Task
Force my professional opinion that a strong, effective, well-funded
Endangered Species Act is a requirement for the future health and well-being
of Americans and all humans. The entire assemblage of species upon this
earth represent a vast, largely untapped reservoir of knowledge and
understanding which we cannot yet begin to comprehend. Human activities
are driving more and more of these species to extinction. This cannot be
permitted to continue for it will deprive future generations of knowledge
which will be vital to their survival and quality of life.

I have heard often the argument that saving species costs too much and
impairs economic development. My reply is that no one has any accurate
conception of how much we benefit from species diversity. The fact is that w e
cannot afford not to save species!

I wish to illustrate this latter point first with a specific example from my own
scientific work and then secondly with a more general example of how the
field of biomedical research is impacted by the wealth of species in nature.

I am trained as an organic chemist (Ph.D.) and for the last three decades have
performed chemical and biochemical research aimed at discovery of new
approaches to the treatment and cure of human disease. I am presently Chief
of the Section on Biomedical Chemistry in the Laboratory of Medicinal
Chemistry in the National Institute of Diabetes and Digestive and Kidney
Diseases at the National Institutes of Health in Bethesda, Md. I have published
over 160 scientific papers, and serve as a member of the Board of Editors of two
scientific journals. Of course, this entire letter represents my own personal
scientific opinion and in no way relates to opinion and policy of the NIH.

For approximately 15 years, I have studied a little known mechanism found in
reptiles, birds and mammals. This system, called 2-5A for short, is an early
defense mechanism against virus infection. It acts even before the immune
system can respond and so plays a vital role in controlling the spread of virus
disease. This unique natural defense system has now yielded in our laboratory

226

a novel approach to the treatment of not only viral diseases, such as AIDS, but
also potential approaches to cancer therapy, heart disease, and a host of other
human maladies. The U.S. Government has applied for a patent based on our
work with this 2-5A natural defense system, and also has licensed the patent
rights to a start-up biotechnology company to pursue aggressively the full
therapeutic potential of this new, nature-based, technology. (I include some
relevant scientific papers in support of these points)

Now you can see what this one solitary clue supplied by a natural system is
capable of doing. This natural system is providing us with new potential

approaches to the treatment of a wide variety of human disease. In the
process, it is creating jobs, and if fully realized, it will create a marketable
product for the pharmaceutical industry. Yet there is no way that I or any
other scientific investigator could have developed this technology without the
information contained in nature! Nature remains the great provider.

I want to call your ESA Task Force's attention to one of a large number of
additional contributions of species diversity to the health and economic well-
being of Americans. I refer here to the contribution of strange slimy
creatures which have made possible the biotechnology revolution (see
appended Table entitled "The Role of Biological Diversity in Biotechnology").
Among other things, the enzymes found in this wide variety of life forms have
enabled the precise cutting of DNA, the stuff of genes, so that pieces of DNA
can be recombined in new ways. Yet, three decades ago, someone surely could
have asked "what good is Enterobacter agglomerans or Kluyvers ascorbata ?"
Only those who pretend the omniscience of God can dare to ask such questions.

The second table I have appended is entitled "Applications & Sales of Selected
Biopharmaceuticals". This is by no means an exhaustive listing of those
pharmaceuticals brought into production by application of the recombinant
DNA technology made possible by many of the organisms referred to in the
preceding table. Consider, Mr. Chairman, the relief of human suffering made
possible by secrets from the diversity of life on earth. Consider, Mr. Chairman,
the billions of dollars in sales generated thanks to the lowly fauna of Creation.

Mr. Chairman, government has always moved to prevent harm to the common
good. Without a strong, vital, aggressive, and well-funded Endangered Species
Act, our present society, intent on short-term gain, will irreparably harm the
future physical health, quality of life, and economic well-being of not only
the present generation, but it will even more severely circumscribe the
choices, freedoms, and lives of unborn generations.

The Earth's diverse species, each and every one of them, provide a richness to
humans only beginning to be appreciated. I implore you and your Task Force
and the U.S. Congress to provide the strongest possible legislative framework
to protect the fabric of all life, and in so doing, thereby safeguard the future
of hirmankind.

227

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The Role of Biological Diversity in Biotechnology
Enzyme Organism Source

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polymerase

Arthrobacter citreus
Acinetobacter Iwofii
Acinetobacter Iwoffi N
Arthrobacter species
Bacillus laterosporus
Bacillus pumilis
Bacillus species
Bacillus species
B. stearothermophilus
Enterobacter agglomerans
Kluyvers ascorbata
Pseudomonas alcaligenes
Pseudomonas fluorescens
Pseudomonas lemoignei
Pseudomonas medicina
Pseudomonas maltophila
Pseudomonas putida
Xanthomonas campestris

Thermococcus litoralis

Deep Vent
DNA polymerase Pyrococcus strain GB-D

Venice, FL, garden

Washington, D. C. soil

Maine lake

Moundsview, MN swamp

soil

Manchester, MA soil

Wenham, MA soil

Papua New Guinea soil

Boulder, CO stream
Keene, New Hampshire
South Louisiana bayou
West Chicago, IL soil
Washington, D. C.
Beverly, MA soil
Southern Finland
W. Chicago wetlands
Bahamas

submarine thermal vent
Naples, Italy

Guaymas Basin

Gulf of California

Source: Dr. Ira Schildkraut, New England Biolabs, Beverly, MA

229

NATIONAL ASSOCIAHON OF REALTORS*

NATIONAL ASSOC ATION

_^ _ ^^ . . ^^^ -^^® Washington, DC 20001-4507

OF REALTORS .^^o..^.

Dr. Almon a Smith. CAE, Executive Vice Pteeident

realtor' The voice for Real Estate® "" ""^

Jerry GlovenMlo, Vice President
Government Relatione
Telephone202 383 111S

Fix 202 383 7540

The Honorable Don Young

Chair

House Resources Committee

2331 Raybum House Office Building

Washington, DC 20515

Dear Chairman Young:

On behalf of the NATIONAL ASSOCIATION OF REALTORS® (NAR), I would like
the attached testimony on the Endangered Species Act entered into the record for the hearings
which were held in May of this year by the House Resources Committee.

The NATIONAL ASSOCIATION OF REALTORS® believes the way in which the
Endangered Species Act (ESA) is implemented is of the major importance. We support the
addition of amendments to the Threatened and Endangered Species Act that recognize
socio-economic considerations and urge that compensation be required in cases where the value
of private property has been unduly diminished or jeopardized by government action under the
Act.

While the Association supports programs to enhance the environment, we believe that
these programs should be conducted in a balanced manner. Plaiming for the classification and
use of land must adequately consider the needs of housing, agricultural, commercial and
industrial grovrth, as well as the quality of life and a healthy local economy.

Thank you for the opportunity to express our views.

Sincerely,

Gill Woods, Jr.
President

ti>

230

Statement of ttie
NATIONAL ASSOCIATION OF REALTORS^

The voice for Real Estate^
THE WORLD'S LARGEST TRADE ASSOCIATION

SUBMITTED TO THE HOUSE COMMITTEE

ON RESOURCES

ON THE ENDANGERED SPECIES ACT

JUNE 1995

231

STATEMENT OF

THE NATIONAL ASSOCIATION OF REALTORS®

SUBMITTED TO THE HOUSE COMMITTEE ON RESOURCES

ON THE ENDANGERED SPECIES ACT

JUNE 1995

INTRODUCTION

Thank you for the opportunity to submit the NATIONAL
ASSOCIATION OF REALTORS'® comments for the record on the
federal Endangered Species Act. The NATIONAL ASSOCIATION OF
REALTORS®, comprised of nearly 750,000 members involved m all
aspects of the real estate industry, has a keen interest in the Endangered
Species Act and private property rights.

The Association believes that development should be encouraged
as it is a stimulus to the economy, it increases the tax base, provides
places to live and work, and offers opportunities that would not
otherwise exist. However, we also realize the responsibility we have to
educate and work with local, state, and federal government officials to
develop responsible growth planning that is equitable and considers the
divergent needs of transportation, housing, agriculture, commercial,
industrial, and envirormiental concerns.

The NATIONAL ASSOCIATION OF REALTORS® believe
the way in which the Endangered Species Act (ESA) is implemented is
of the major importance. We support the addition of amendments to the
Threatened and Endangered Species Act that recognize socio-economic
considerations and urge that compensation be required in cases where

232

the value of private property has been unduly diminished by government
action under the Act.

While the Association supports programs to enhance the
environment, we believe that these programs should be conducted in a
balanced maimer. Plarming for the classification and use of land must
adequately consider the needs of housing, agricultural, commercial and
industrial growth, as well as the quality of life and a healthy local
economy.

NATIONAL ASSOCIATION OF REALTORS® ENDANGERED
SPECIES POLICY CONCEPTS

Recognizing the extreme environmental significance of
Endangered Species, the NATIONAL ASSOCIATION OF
REALTORS® believes that any legislation or regulation should include
the concepts as outlined as follows:

• Compensation to property owners whose land is adversely affected
by implementation of any provision of the ESA.

• Use of incentives to private property owners for species protection
rather than relying solely on restrictions and penalties.

• A strict limitation on how far dovm the chain of sub-species will
be allowed in listings.

• A listing as threatened or endangered must be based on verifiable,
scientific evidence.

• Provisions to protect private property rights and narrow the reach
of the ESA on private lands, to include, but not limited to, notification
of private property owner of potential listings which impact their
property.

• Increase local involvement in creating and implementing recovery
plans.

• Support for the concept of substantial equivalency for states that
currently have adequate legislation.

• No implementation of a National Biological Survey of private
property without express written permission of the property owner.

• hidependent peer review committees should review both the
scientific evidence and economic impacts of all listings.

• Periodic review and expedited delisting of species when supported
by verifiable scientific evidence.

PRIVATE PROPERTY RIGHTS

NAR's concerns extend beyond the immediate interests of the real
estate industry. Because this issue has a significant impact on private
land, we also wish to direct attention to the larger issue of protecting
private property rights.

The NATIONAL ASSOCIATION OF REALTORS® has worked
for years to encourage a balanced approach to environmental protection
that accommodates the important needs for both conservation as well as
economic opportunity and vitality. To balance the efforts of
government to serve the public well-being by controlling pollution and
protecting natural resources with the economic and property rights
secured by the Constitution, we believe that the cost of the benefits to
the general public achieved by such regulation should be borne by the
beneficiaries~the general public. We oppose those aspects of
environmental and natural resource legislation that amount to
uncompensated condemnation of private property through government

234

action. It is essential that the rights of private property owners be fully
recognized in local, state, and federal programs and laws.

To that end, we urge the adoption of legislation which provides that the
economic burdens associated with the protection of appropriate
endangered species be borne by the public, rather than private
landowners. Such legislation should further establish a means for
landowners to be compensated when deprived of the right and
opportunity to use their property in a productive fashion in order to
further the end of species preservation.

ENDANGERED SPECIES IMPACTS ON HOUSING
AFFORD ABILITY

The impact of the Endangered Species Act on housing
affordability and new construction varies widely throughout the nation,
hi some areas of the country the only impact is due to the increase in
lumber prices attributable to the listing of the spotted owl. hi other
areas of the country multiple species listings can impact the
development of a single piece of land. Because of variations in the
impact of the Endangered Species Act, NAR's analysis of the impact on
housing looks to three case studies.

CASE STUDY 1

Kit fox and Swainson's Hawk in San Joaquin County California

Cost per Housing Unit

kit fox survey required by the USFWS. $52.00

Swainson's Hawk habitat mitigation fees 237.00

Increase in traffic fee due to the implementation of the ESA on city,

county and state projects (estimate) 500 00

Increase in sewer fee due to the implementation of the ESA on city

sewer plant expansion (estimate) 1 50.00

Increase in water treatment fee due to the implementation of the ESA

on city water plant expansion (estimate) 1 50.00

Increase in water supply fee due to the implementations of the ESA

on city purchase of water rights (estimate) 300.00

Increase in storm drainage fee due to the implementation of the ESA

on city storm dram system (estimate) 150.00

Increase in aggregate costs due to the implementation of kit fox

mitigation on aggregate suppUer (estimate) 25.00

Increase in lumber costs due to the implementation of spotted owl

mitigation on lumber prices (estimate) 3,500.00

TOTAL: $5,064.00

CASE STUDY 2
Bald Eagle in Florida

Cost per Housing Unit
Survey of plant and animal Ufe (estimate) $50.00

Cost of land for mitigation around nest site and flyway to the water (estimate) 3,000.00
Increase in lumber costs due to the implementation of spotted owl 3,500.00

mitigation on lumber prices (estimate)

TOTAL: $6,550.00

CASE STUDY 3

Golden-cheeked Warbler in Travis County Texas

Cost per Housing Unit
Permit application fee $25.00

Golden-cheeked warbler conservation fund payment 1,500.00

Increase in lumber costs due to the implementation of spotted owl 3,500.00

mitigation on lumber prices (estimate)

TOTAL; $5,025.00

Because of the localized impacts of endangered species regulations
it is difficult to determine the impact on housing affordability. In some
areas where only a small portion of the land is affected the cost may fall
primarily on the landowner while the impact may fall primarily on land
purchasers when the majority of the land is impacted. However
increases in the price of housing due to higher lumber prices impact all
homebuyers. The $3,500 increase in the price of a median priced new

236

home due solely to lumber prices would reduce the number of
households who would qualify for a mortgage on a median priced single
family home by roughly 1.8 million, based on currently prevailing
mortgage rates and standard underwriting criterion. In any given year
only about 4.5 percent of the population purchase a home so roughly 80
thousand households would be priced out of the market. These numbers
only consider the households that are priced out of the market due to
payment constraints. Additional housholds would be priced out of the
market due to the additional money required for the downpayment.
These upfont costs often present a greater barrier to homeownership
than monthly payments. This impact on homeownership would be even
greater if job losses in the timber and construction industries are
considered.

WATER RIGHTS

NAR's membership is very interested in the concept of water
rights. It is our understanding that Congress may address this issue at
some point. With that in mind, NAR's Water Rights policy is included
for your review.

The central question to a debate of this issue is simply stated;
What is the proper federal role in water resource management*^ The
NATIONAL ASSOCIATION OF REALTORS® opposes water
allocation legislation at the federal level which supersedes state law and
interstate water compacts and which may result in takings of water
property rights without compensation.

Water supply needs vary from state to state. Congress has
traditionally deferred to the responsibility and expertise of the states for
the allocation, administration, and use of water for residential,
commercial, industrial, agricultural, municipal, recreational and aquatic
life purposes. As a result, states have chosen their own water law
systems in order to secure a stable and clean water supply to provide for

237

sufficient food, drinking water, economic productivity, recreation and
aquatic life. An extensive intrastate and interstate water supply
infrastructure has been established based upon these state water law
principles.

We are concerned that federal initiatives to expand existing water
pollution control programs in order to protect the ecological integrity of
water bodies may go far beyond what is necessary to meet water quality
needs. Overly restrictive requirements might impose economic burdens
on landowners and industry perhaps without significantly improving
water quality and in the process erode traditional state authority to
determine land and water usage.

NATIONAL ASSOCIATION OF REALTORS® WATER POLICY

We support the wise use and management of our nation's water
resources so that residential, commercial and industrial development,
can proceed unencumbered in the fiiture. States water rights and
regional customs, as they have developed over the years, should be
considered by all levels of government. We also recognize the
importance of a well-developed mfrastructure in ensuring adequate
water quality and quantity.

CONCLUSION

NAR believes properly conducted programs of land preservation
and historic preservation which attempt to protect aquifers, agricultural
lands, wetlands, scenic vistas, natural areas, historic properties and open
space may have a positive effect on the quality of life in towns, counties
and municipalities. However, in establishing land use laws and
regulations for the purpose of protecting these resources, the cost of the
benefits of these programs to enhance our nation's resources should be
paid for by the general public. Therefore, we believe that financial
incentives should be developed for the protection of endangered species.

238

Current government real property acquisition practices have
resulted in excessive amounts of private property being placed in the
government estate. Federal property acquisition agencies have been
authorized by Congress to acquire private property for parks, national
forests, refuges and for other purposes, but have not been provided with
the resources to promptly compensate landowners or adequately manage
acquired lands. " ^

The Fifth Amendment of the United States Constitution states that
private property shall not be taken for public use without just
compensation. This premise was one of the fundamental building tenets
of our nation and it should remain so today.

The NATIONAL ASSOCIATION OF REALTORS® and the
nation support an Endangered Species policy that is environmentally
sensitive, yet allows our nation to be economically competitive.

Thank you for the opportunity to express our views.

WRITTEN TESTIMONY

SUBMITTED TO THE U.S. HOUSE OF REPRESENTATIVES

COMMITTEE ON RESOURCES

ENDANGERED SPECIES ACT TASK FORCE HEARING

STATEMENT BY:

W. Mike Howell, Ph.D.
Professor of Biology
Department of Biology

Samford University
Birmingham, AL 35229
Telephone (205)870-2943

MAY 25, 1995

240

TESTIMONY OF W. MIKE HOWELL, PH.D.

Chairman Pombo and distinguished Task Force members, it is my privilege to
present testimony to you regarding scientific issues relevant to your consideration of
possible revisions to the Endangered Species Act ("ESA"). Let me first establish for
the Task Force my qualifications. I received the B.S. degree in Biology (1962),
M. S. degree in Biology (1964), and Ph.D. degree in vertebrate zoology from the
University of Alabama (1968). My major research field is Ichthyology. From 1972
to 1974, I was Assistant Professor of Ecology & Systematics, as well as Curator of
the Fish Collection, at Cornell University. Excluding my time at Cornell University,
I have taught in the Biology Department at Samford University from 1966 until the
present, i. e., 28 years. In addition, I served as Head or Chair of the Department of
Biology at Samford for 12 years. My professional specialties are in the areas of
taxonomy, systematics, ichthyology, vertebrate zoology and cytogenetics. During my
professional career, I have written and published more than 50 peer-reviewed
scientific papers. I have discovered and described three fish species new to science,
including the first federally-listed endangered fish species unique to Alabama, the
watercress darter, Etheostoma nuchale. in 1965. In addition, to working closely with
the U.S. Fish & Wildlife Service ("FWS") on other issues over the years, I worked
with FWS as the Recovery Team Leader for the Watercress Darter from May 1976
until October 1982. For my work on the Recovery Plan for the Watercress Darter, I
received a special commendation from FWS. Finally, I was a co-author of the first
report on rare and endangered fishes in Alabama, in 1972, and several similar reports
published subsequently.

In case the above discussion does not make the point clearly enough, let me
emphasize for the Task Force that I am staunchly committed to the identification and
protection of endangered and threatened species, as well as to general principles of
conservation ecology. For example, during 1991, I received U. S. Patent Number
5,073,115 for the development of a special teaching-photographic tank in which
students can place a live fish to study its taxonomy and characteristics without having
to kill the fish by fixing it in formaldehyde. The fish is simply placed into the tank
containing water from the fish's habitat. The structural design of the tank allows for
the fish to be immobilized without harming it. The fish can then be studied by
students and photographed before it is returned to its natural habitat unharmed. This
tank grew out of nearly thirty years of my teaching ichthyology/vertebrate zoology to
university students. It also grew out of my desire to save fish populations to be able
to study them without the necessity of killing them in preservative solutions.
Consequently, my opposition to the present way the ESA is applied is not based on a
proactive "anti-green" philosophy. On the contrary, since 1976, I have been actively
involved in FWS endangered and threatened listings of many fish species in the
Southeast, particularly in Alabama. In most of those FWS proposals, I have supported
the listing process. In my many years of active research and scientific study, I have
actively opposed the proposed listing of only three species: the goldline darter,
Percina aurolineata: the barrens topminnow, Fundulus julisia: and the Alabama
sturgeon, Scaphirhvnchus suttkusi. My reasons for opposing those listing proposals
were: the goldline darter was shown not to be endangered based on my own field
work in the Little Cahaba River in Alabama; the barrens topminnow, found in

241

Tennessee, can be raised prolifically in laboratory aquaria as proven by culture
methods developed in our laboratories at Samford University; and the Alabama
sturgeon, because I believe it is conspecific (i.e., the same species) with the
shovelnose sturgeon, Scaphirhvnchus platorvnchus. which occurs abundantly in the
Mississippi River basin.

The ESA Fails to Adequately Address and Assess Complex
Biological and Taxonomic Issues

It is my opinion that the ESA fails to adequately address and assess the complexities
of many important biological issues, especially those related to taxonomic decisions. For
example, if an individual or group wants to block a proposed project or industrial activity, it
is common knowledge that they will often begin searching for an endangered species in the
area. If none are found, they may search out a "green" taxonomist to fabricate a "new
species" or subspecies from an already existing, named species. For example, they may
select a population or population segment which is isolated from the main segment of a
larger, more widely-distributed population of the same species. Because peripherally isolated
population segments may have been geographically isolated for many years, the gene
frequencies may have shifted slightly, and the species' meristic and morphometric characters
may be slightly different from those of the main population. In some cases, these minor
taxonomic differences may even be statistically significant. However, this does not
necessarily mean that the two populations represent either a distinct species, a subspecies, or
even a distinct population segment. This is because statistically distinct populations occur
within most populations of all wide-ranging species; and, as any good field biologist knows,
taxonomic characters are also plastic and often change from year to year and from habitat to
habitat. For example, it has been shown in a mosquitofish population inhabiting a large lake
that the taxonomic characters and gene frequencies may be slightly different in groups of
mosquitofish found from place to place within the same lake. Each tiny cove can contain
mosquitofish which have statistically different body shapes from other groups within that
same lake. Even the number of fm-rays or scales may be statistically different between
groups (demes) of fishes inhabiting the same lake, but living in different coves and habitats.
However, this does not mean that these statistically distinct groups represent biologically
distinct species. Fish populations constantly expand and contract. Migration and
immigration of stray fish into and out of various populations have an inhibitory effect on
speciation.

Unfortunately, neither the ESA nor the FWS deals adequately with these complex
biological issues. Indeed, seasoned taxonomists often have problems dealing with these same
issues, and controversies arise even among different scientists. It is also unfortunate that
some scientists will "discover" and describe a new species or subspecies simply because its
taxonomic characters are statistically significantly different from those of the body of the
main population. This is what the data indicate happened in the case of the so-called
"Alabama sturgeon", Scaphirhvnchus suttkusi. Presently, I, along with three co-authors. Dr.
Paul Blanchard, Dr. Alfred Bartolucci, and Dr. Robert Angus, have a 65 page manuscript in
review at the professional scientific journal. Environmental Biology of Fishes. If this peer-

-2

242

reviewed paper is accepted for publication, it will appear in an upcoming issue dedicated to
papers dealing mostly with sturgeon conservation and biodiversity. The idea for this special
issue grew out of the International Conference on Sturgeon Biodiversity and Conservation,
which met in New York City during June or July 1994. In our paper, we have presented
detailed evidence that we believe shows the Alabama smrgeon is the same species as the
shovelnose sftirgeon, Scaphirhvnchus platorvnchus. which is abundant and widely-distributed
throughout the Mississippi River basin from Montana to Ohio to New Orleans.

Indeed, for over 90 years, the shovelnose sturgeon, Scaphirhvnchus platorvnchus. has
been known to occur within the Alabama River system. However, just four years ago, in
1991. two scientists named this peripherally isolated Alabama River basin population as a
new species. The FWS immediately proposed to list it as endangered along with a proposed
critical habitat designation involving many river miles on three rivers in Alabama and
Mississippi. The proposed listing called for severe curtaibnent of river channel
maintenance, gravel mining, dredging and hydropower production along the Alabama,
Tombigbee and Cahaba rivers. This led to a head-on clash: the FWS versus the U. S.
Corps of Engineers, state government agencies, and major Alabama and Mississippi
businesses and industries. Despite hundreds of pages of scientific analysis and criticisms
presented on the record regarding the validity of the designation of the Alabama sturgeon as
a "new species", the FWS doggedly persisted for over three years in their efforts to list the
fish in the face of overwhehning opposition from several reputable scientists, Alabama's and
Mississippi's congressional delegations, seven southern governors, state government
agencies, all major industries in Alabama, the U. S. Army Corps of Engineers, the
Southeastern Power Administration, the U. S. Coast Guard, nearly all Alabama newspapers,
thousands of Alabama citizens, and at least two scientists from the Department of Interior's
own National Biological Survey, who performed DNA studies concluding that the Alabama
sturgeon and the shovelnose sturgeon were genetically identical. Moreover, something in
the ESA clearly needs to be changed when the FWS can use their unbridled discretion to try
to prevent the gathering of additional scientific information that is crucial to the listing
decision process. During December of 1993, in the middle of the listing process, FWS
denied me and the Corps of Engineers scientists the oppormnity to examine the only live
Alabama sturgeon which had been captured since 1985, but allowed those scientists
"friendly" to the FWS the oppormnity to examine the fish and make counts, measurements,
photographs and videotapes. Despite repeated requests, including those made by the
Alabama congressional delegation. Corps of Engineers scientists and my colleague and I
were not allowed to view the fish until eight days later, after the fish had died and was
frozen. Even then, we were given only 15 minutes to make some 46 counts and
measurements on the dead fish along with still photography, and we were even timed with a
stopwatch.

Through a subsequent Freedom of Information Act (FOIA) request, we later received
and read a copy of a draft final listing document on the Alabama smrgeon written by FWS
biologist, Mr. Richard Biggins, located in Asheville, North Carolina. In that draft
document, Mr. Biggins agreed with us that the Alabama sturgeon was conspeciric (i. e.,
the same species) with the shovelnose sturgeon. However, for some reason, other higher
level FWS personnel rejected his opinion and that draft fmal listing document never appeared

243

in the Federal Register.

Lack of Scientific Checks & Balances in the ESA

The ESA does not currently contain enough checks and balances. Many of the
environmentally "green" taxonomists who describe "new species" by the unnecessary
splitting of wide-ranging species into separate species or subspecies, submit their manuscripts
to friendly "green" editors, who in turn pass the manuscripts on to friendly "green" peer-
reviewers. Often, the entire cast of scientists involved in such a scenario either have
received funding from, or are being presently funded, by the FWS to do various research or
study projects or status reviews or surveys. I have known of a FWS field biologist who has
actually encouraged some of the "green" taxonomists to describe a population just so FWS
could list it as endangered. Unfortunately, a "good-old buddy" system has often existed
between many so-called "independent" scientists and certain FWS officials. For example,
out of the nine scientists selected by the FWS to form a panel to review the science on the
Alabama snirgeon, at least eight of those scientists, or their laboratories, had received or
were receiving funds from the FWS, and several of the nine scientists had already publicly
committed themselves in the press and other newsmedia as supporting the listing of the
Alabama sturgeon and the position of the FWS before they were selected for the panel.
Despite numerous objections, the FWS forged ahead with their panel of admittedly biased
scientists. In an effort to obtain a more balanced panel, the Alabama congressional
delegation provided FWS with the names of several eminent scientists who had no prior
connection with the Alabama sturgeon and who were recognized experts in this scientific
area. However not a single one of those scientists was chosen by FWS to serve on the
scientific review panel. To make matters worse, no one other than FWS officials were
allowed to attend the closed-door meetings of the FWS-selected sturgeon review panel. How
can the citizens of Alabama and Mississippi, business and industry, other federal and state
governmental agencies and other interested and involved scientists have an opportunity to
participate in a scientific review panel process such as this when the whole process, from
beginning to end, can be controlled entirely by FWS and their friendly scientists? The ESA
must be changed to ensure fair representation for all scientific viewpoints, without having to
resort to redress in the courts.

The ESA and Inadequate Science

Based on my experience, many of the proposed endangered species listings are not
based upon adequate science. Traditionally, there has been a poor fit between science and
the proper implementation of the ESA. The FWS has historically had a tendency to vastly
overstate the ecological impacts, which supposedly have resulted from and/or will be caused
by myriads of human activities. For example, on August 3, 1994, the FWS proposed in the
Federal Register to list five species of mussels as endangered and two as threatened in
southeast Alabama and southwest Georgia. FWS' listing proposal stated that the, "Factors
contributing to the habitat loss are: impoundments and deteriorating water and bottom
habitat quality resulting from channel modification, siltation, agricultural runoff from crop
monoculmre and poultry farms, silviculture activities, mining activities, pollutants, poor land
use practices, increased urbanization, and municipal and industrial waste discharges." Such
an all-encompassing listing statement has the potential not only to affect navigation but also

-4-

244

the timber industry, gravel mining operations, all municipalities and industries along the
waterway, fanners, poultry industry, flood control, hydroelectric power, and a host of other
human activities. Under the ESA, as it currently exists, this kind of proposal can be
published by FWS in the Federal Register often without a shred of scientific evidence to
support such conclusions. In actuality, runoff from crop monoculture and poultry farms
may even fertilize the water, stimulating bacterial and algal growth; and, these increased
nutrients might even be good for mussel growth and reproduction. This is purely conjecture
of course, but it is as valid as PWS blindly assuming that runoff from crop monoculture and
poultry farms is always detrimental to mussels. Who prevents the FWS from utilizing
such woefully inadequate science? The answer is: no one. The FWS has often adopted a
"Chicken Little" approach in writing their listing regulations. Solid supporting science and
the elimination of conjecture throughout all stages of the listing process are prerequisites to
developing a good recovery plan and avoiding unnecessary adverse impacts of economic and
human activities. Thorough, comprehensive, un-biased scientific peer review should be done
by truly independent peer reviewers who have neither a vested interest in the species in
question nor are dependent upon FWS dollars for their professional development and well-
being. Congress should also require that in preparing listing proposals and final rules FWS
must be specific about exactly what human activities are actually harmful to the species, and
FWS should be required to document any alleged "harmful" impacts with solid, verifiable
research data and literature citation. We realize there will never be "perfect science" and not
always 100% complete scientific research, but that does not excuse the use of "shoddy
science" or conjecture in the decision process, as I have seen FWS do on several occasions.
I have reviewed many FWS proposed endangered species listings during my career—some
with excellent documentation and validity, some with borderline merit, and some that were
woefully inadequate from a scientific standpoint. My most recent and extensive involvement
has been with FWS* proposal to list the Alabama sturgeon. A summary of our findings in
that particular case are as follows:

1. The taxonomy was incomplete and insufficient to support an endangered
listing;

2. The scientists involved misused the statistical data in the original description of
the Alabama sturgeon to improperly designate it as a separate species;

3. FWS overstated the alleged adverse impacts of man's activities on the
sturgeon; and,

4. FWS used conjecture rather than solid verifiable science to support its
conclusions. For example, FWS said that a continuous minimum water flow
of 3,000 cubic feet per second was needed for the Alabama sturgeon to
survive. We questioned FWS about where they came up with the figure of
"3,000 cubic feet per second". A FOIA request document ultimately showed
the F>\'S had no data to support its conclusion, and they admitted that this
flow rate requirement was merely their "best guess" for what the fish might
need.

-5-

245

The ESA should be changed to prevent FWS from using such "best guess" procedures.
Conjecture is not adequate in our modem world where field data are cheaper to obtain than
unnecessarily spawning a fight of the magninide of the Alabama sturgeon controversy, which
cost industry and government hundreds of thousands of dollars to challenge.

Reconunendations to Remedy Specific ESA Problems

1. Ensure that solid independently verifiable scientific data, including DNA
analysis, is used in original species descriptions;

2. Ensure that species status reviews and surveys are also based on accurate
independently verifiable scientific information;

3. Ensure that representatives from other government agencies, business and
industries which might be impacted by an endangered species listing are
guaranteed an opportunity to participate in the listing process

from the time of "candidacy" or a "petition to list" is submitted to FWS until
the final decision on the listing proposal is made;

4. Enlist the services of truly unbiased and independent scientists to review the
overall listing process and require them to present their peer reviews to other
interested scientists and representatives from state and local
governments, affected businesses and industries, as well as IWS before the
final decision on the listing proposal is made;

5. Ensure that the FWS no longer relies on science produced by the "good-old
buddy" system that just happens to have been peer-reviewed. For example,
there are several described species whose names were published in peer-
reviewed journals; however, those are no longer recognized by taxonomists as
being separate species even though those species have not yet been officially
synonymized;

6. Develop a more iron-clad, more specific defmition of "species"; and,

7. Provide a process whereby scientific questions (especially questionable data
being used by FWS), could be subjected to and adjudicated by some higher
authority or panel to inject fairness and "due process".

-6-

246

Conclusion
It is obvious that the ESA should be changed to ensure that independently veriFiable
scientific data is used in listing decisions and in the development of species recovery
plans.

I would like to express my appreciation for the opportunity to present this testimony. I
would be happy to supplement this testimony if the Task Force so desires.

W. Mike Howell, Ph.D.
Professor of Biology
Department of Biology
Samford University
Birmingham, AL 35229
Telephone (205)870-2943

I have reviewed the above testimony and based on my experience as a professional biologist
apd with the Alabama sturgeon proposal, I concur with Dr. Howell's testimony.

Paul D. Blanchard, Ph.D.
Assistant Professor of Biology
Department of Biology
Samford University
Birmingham, AL 35229
Telephone (205)870-2568

247

WRITTEN TESTIMONY

SUBMITTED TO THE

U.S. HOUSE OF REPRESENTATIVES

COMMITTEE ON RESOURCES

ENDANGERED SPECIES ACT TASK FORCE HEARING

SUBMITTED BY

TERRY D. RICHARDSON, Ph.D.

Assistant Professor of Biology

AND
PAUL YOKLEY, JR.. Ph.D.
Emeritus Professor of Biology

Department of Biology

University of North Alabama

Florence, Alabama 35632-0001

(205) 760-4429

May 25, 1995

248

TESTIMONY OF

DR. TERRY D. RICHARDSON

AND

DR. PAUL YOKLEY, JR.

Mr. Chairman and distinguished Committee Members, it is a privilege to present to you
our professional views on the Endangered Species Act of 1973, as amended, and its current
application.

Terry Richardson is an Aquatic Ecologist, Director of the Rare and/or Endangered
Species Research Center, and Assistant Professor of Biology at the University of North Alabama
located at Florence, Alabama. Paul Yokley, Jr. is a raalacologist, retired Professor of Biology
(also from the University of North Alabama) and founder of the Rare and/or Endangered Species
Research Center at the University of North Alabama. As a routine part of our professional
endeavors, we are continually involved with activities related to the preservation of rare,
threatened or endangered species. We work closely with federal, state and private agencies on
issues of endangered species recovery, relocation, surveys, habitat assessment, and proposed
listings. As such, we are familiar with the implementation of the Endangered Species Act by
the U.S. Fish and Wildlife Service and the U.S. Department of the Interior. We are presenting
this testimony in order that our cumulative experience, as well as our professional opinions, may
be considered by this committee during its review of the Endangered Species Act.

While all parties involved believe that preservation of species and habitat is a high
priority, the perceived inequities of the Endangered Species Act have placed the Act under
intense scrutiny by the industrial and private sectors. Industries are concerned with land and
waterway application issues, and management and maintenance costs encountered when species
are listed. Similarly, private landholders are concerned with how listing species limits their
rights of ownership and land usage.

The numerous proposals submitted by the U.S. Fish and Wildlife Service to list species
under the Endangered Species Act and the concomitant recovery plans have become the focus
of listing issues primarily because of their potential economic impacts. As cases-in-point, we
cite the concerns surrounding the two recent proposals for listing the so-called Alabama sturgeon
and the listing of seven mussels in the Apalachicolan Region.

There are two critical issues we find in need of examination in any review of the current
Endangered Species Act. First is the lack of an independent peer-review process for U.S. Fish
and Wildlife Service's listing proposals. Second is the recovery plaiming process for listed
species.

Because listing species under the Endangered Species Act is predicated on using the " . . .
best scientific and commercial data available" and because listings are to be ". . .as accurate
and as effective as possible," we are concerned that the Endangered Species Act does not
currently address the scientific review of status surveys and the ensuing proposals upon which

249

species listings are based. Because these scientific reports are used to implement law, their
preparation and, more importantly, their review should be explicitly governed by language in
the Endangered Species Act.

The scientific community as a whole has a rigorous peer-review process through which
all published scientific works, large or small, must pass. While there are numerous versions of
this process, all share a common procedure. First, manuscripts are prepared that contain an
introduction to the study, a detailed materials and methodology section, a results section
providing readers with essential summary data sufficient to judge the scientific validity of
conclusions, a discussion of the author's conclusions regarding the data, and a bibliography.
Next, the completed manuscript is submitted to a senior editor who is typically not associated
with the author's institution. The editor will then select two or more anonymous expert
reviewers to critically examine the document for accuracy, adherence to sound scientific
practices and ethics, and validity of results and conclusions. The reviewers' comments and
conclusions are sent back to the senior editor who, with the benefit of all reviews, will make a
decision regarding the publication stams of the manuscript. Very often scientific works are
rejected for publication, because they do not satisfy the standards of the reviewers and review
process. Some works, however, will be accepted for publication, but only after the author
addresses some specific concerns of the reviewers and editor.

The scientific community has voluntarily subjected itself to such a rigorous set of checks
and balances to ensure that only the best, most accurate and reliable scientific information will
be released for general use and application. The U.S. Fish and Wildlife Service, however, is
not required to submit their listing proposals and status surveys to the peer-review process under
the current Endangered Species Act. This inadequacy is compounded when one considers that
the results of the U.S. Fish and Wildlife Service's activities can take on the force of law with
serious environmental and economic consequences.

The current process of publishing proposals in the Federal Register and inviting
comments from interested parties is inadequate at best and does not address the issue of having
a peer-review process in place to ensure good and accurate science. Most of the reviews a
proposal receives are by other U.S. Fish and Wildlife Service personnel, and such internal
"friendly" reviews are often subject to bias. Also, independent external experts who are
qualified to review a listing proposal rarely read the Federal Register: consequently, they are
not aware of the proposals that appear there. Furthermore, for those scientists who are aware
of listing proposals in the Federal Register, there is often not enough detail on methodology or
inadequate data provided in the published proposal to give a reviewer sufficient information to
judge the scientific merit and soundness of the proposal. As a case-in-point, we again refer to
the Service's proposal to list seven mussels as threatened or endangered in the Apalachicolan
Region published in the August 3, 1994 Federal Register. Information critical to assessing the
validity of the proposed listing was simply not available in the Federal Register document.
Finally, because the published proposal is the document used by the Secretary of the Interior to
make a decision on the listing, the request for comments comes at the wrong stage of the
process. To ensure that only the best available scientific data are used to make a decision on

250

listing, the peer-review process should come before the proposal is published in the Federal
Register. Essentially, it is the status survey upon which a proposal is based that should be
subjected to a vigorous independent peer review.

Currently, when the U.S. Fish and Wildlife Service does request review of a status
survey, it is distributed among fellow federal agencies and a handful of other interested persons.
The Fish and Wildlife Service has also recently adopted a policy of seeking comments from
experts when a proposal encounters substantial scientific criticism. However, even this recent
change is solely voluntary on the part of the Service and is not required under the current
Endangered Species Act. In addition, the active solicitation of reviews and comments comes
only after sufficient questions have been raised concerning the science upon which the proposal
was based. Again, we refer to the proposed listing of seven mussels in the Apalachicolan
Region. Requests for external review by experts of the science were not made until January 3,
1995, fully five months after the proposal appeared in the Federal Register and over one month
after the public comment period was originally scheduled to close. This is not acting within
either the spirit or intent of the scientific peer-review process. The current practice of the U.S.
Fish and Wildlife Service requesting reviews after the proposal has been published is clearly a
case of putting the proverbial cart before the horse. Because of this, much of the U.S. Fish and
Wildlife Service's work is being met increasingly with skepticism and criticism from not only
the industrial and private sectors, but the scientific community as well.

Concerns about the proposal process are compounded by current internal editorial
practices of the U.S. Fish and Wildlife Service. Draft proposals submitted for publication in
the Federal Register are subjected to editorial changes in content and scientific conclusions
without the author's consent or knowledge. In the proposal to list the seven mussels in the
Apalachicolan Region, there is documentation in the record that the U.S. Fish and Wildlife
Service's internal editors made substantial changes and deletions to text in the draft proposal.
The result of those editorial changes subsequently appeared in the Federal Register without the
author's knowledge or approval. Those editorial revisions altered the scientific conclusions
drawn by the author. Such a practice is unheard of in the scientific community. This type of
editorial license used within the U.S. Fish and Wildlife Service is scientifically unacceptable and
verges on being unethical. Taking such liberties with editing when the author's consent has not
been sought and when no peer-review process is in place only serves to exacerbate growing
criticisms and skepticism of the listing process.

It is our professional opinion that any revision of the Endangered Species Act should
tiKlude a mandatory, external, independent, and anonymous peer review of both the status
survey and the listing proposal. This process should be rigorous and require standards that
would meet with the approval of the scientific community as a whole. Furthermore, the status
survey document should conform to the same basic content requirements as other scientific
manuscripts. In addition, the Service should not make any substantial changes to a draft
proposal submitted for publication in the Federal Register without first obtaining the author's
approval.

251

By requiring such a process, all parties involved in a listing proposal would benefit. The
U.S. Fish and Wildlife Service would receive valuable input and criticism from outside scientists
which could be used continually to improve their scientific efforts. The Service would also
benefit by meeting with fewer challenges once the proposal has been published. Industrial and
private concerns would profit by having only the best, rigorously scrutinized scientific data used
in preparing a proposal for listing. Both the economy and the environment would gain by
ensuring that species that are threatened or endangered are indeed listed while at the same time
validating that only those truly in need of protection are listed. Finally, taxpayers would benefit
from having in place a process of checks and balances that makes those conducting the science
accountable to the scientific community for their activities.

Also of critical concern to us are the recovery plans for listed species currently required
by the Endangered Species Act. These plans, when implemented through Section 7 consultations
or Section 10 habitat conservation plans, often require substantial financial input and/or sacrifice
from those who own, control or utilize the habitat. As a result, recovery plans, in essence, are
nothing more than unfunded federal mandates applied via the Endangered Species Act. It is
ultimately left up to the state and local taxpayers, and industrial and private concerns to cover
the costs of recovery plan implementation.

Most species are proposed for listing with no recovery plan in place or even proposed.
In some instances there is insufficient information on the biology of the proposed plant or animal
to allow adequate recovery plans to be drawn up. As a case in point, we again refer to the
Apalachicolan Region proposed mussel listing. By the U.S. Fish and Wildlife Service's own
admission, little is known about the life cycle and reproduction biology of the seven mussels
which have been proposed for listing. Noted scientific experts in the field, however, are in
agreement on the futility of conservation efforts without this type of essential biological
information.

Species are also routinely listed for which the recovery plan amounts to little more than
a preservation or subsistence measure. Too little time, effort, research, and money is available
during the critical period following listing to truly implement recovery of the species. Listing
a species without concomitantly and quickly implementing a realistic, knowledgeable recovery
plan doesn't really benefit the species. Little can be gained by listing a species if we are simply
prolonging the inevitable-especially when economic hardship accompanies the listing.

It is our belief that any revision of the Endangered Species Act should include required,
comprehensive, federally-funded, recovery plans and/or studies, as needed, if a species is to be
listed as threatened or endangered under the Endangered Species Act. Such smdies and plans
should include a listed species' specific requirements for recovery, conclude whether or not a
species will ultimately recover if the proposed recovery plan is implemented, and specify what
steps are necessary to implement such a successful recovery. Only by providing sufficient
funding can we guarantee that true recovery of a protected species will be realized, along with
the preservation of biological diversity as is the true intent and spirit of the Endangered Species
Act. Such a revision would benefit the U.S. Fish and Wildlife Service and the environment by

252

ensuring adequate levels of funding to implement successful recovery of a listed species.
Industry and state and local economies would benefit not only from having species preservation
and recovery, but also from not having to shoulder the financial burden of recovery plan
implementation.

We believe that the preservation and protection of species is required to
biological diversity for both posterity's sake and for ecological stability. We believe, however,
that the Endangered Species Act, as written, suffers from a lack of checks and balances, and
fi-om insufficient follow-through on species recovery. Addressing these areas as the Endangered
Species Act is revised will serve only to strengthen the integrity of the Act and ensure that the
Act's intentions are fully met. It will serve favorably all parties involved in the listing of a
species as threatened or endangered under the Act~from the U.S. Department of the Interior,
environmentalists and scientists, to local taxpayers, businesses, industries and landowners.

Terry D. Richardson, Ph.D.
Assistant Professor of Biology

and
Paul Yokley, Jr.. Ph.D.
Emeritus Professor of Biology
Department of Biology
University of North Alabama
Florence, Alabama 35632-0001
(205) 760-4429

United States Department of the Interior

OFFICE OF THE SECRETARY
Waihington, DC. 20240

Honorable Richard Pombo ini 2 ft 1995

Chairman

Endangered Species Act Task Force

Committee on Resources

U.S. House of Representatives
Washington, D.C. 20515

Dear Chairman Pombo:

This responds to your May 31, 1995, letter requesting answers to
questions regarding the Endangered Species Act for the
consideration of the Committee on Resources. A reiteration of
the questions and our answers are enclosed. You also requested
the names of several individuals involved in the peer review
process of the listing of the fairy shrimp. Their names and
affiliations are:

Dr. Marie Simovich Professor at University of California in
San Diego

Dr. Richard Brusca San Diego Natural History Museum

Dr. Bob Holland Independent consultant - World

recognized vernal pool specialist

Jamie King Doctoral graduate student at University

of California at Davis

Dr. Denton Belk Adjunct Professor of Biology at Our Lady
of the Lakes University at San Antonio,
Texas

All five reviewed the proposed rule for the listing and provided
comments that were incorporated into the final rule.

If I can provide any additional assistance, please contact me
again.

rely, ^^

Sinoertre

George T. Frampton, Jr. \
Assistant Secretary for
Fish and Wildlife and
Parks

Enclosure

92-551 - 95 - 9

254

Questions for the Honorable Bruce Babbitt, Secretary, U.S.
Department of Interior from the Honorable Richard Pombo,
Chairman, Endangered Species Act Task Force.

QUESTION 1. We have observed as we have conducted our hearings
throughout the country that the Endangered Species Act has not
been implemented uniformly and consistently on a national basis.
Have you made an effort to insure that your Department's policies
are consistently inplemented so that every region is treated the
same?

ANSWER: The Service has always strived to uniformly and
consistently implement the Endangered Species Act (Act) on a
National basis. The circumstances that involve the biological
needs of one or more listed species in conjunction with specific
projects often require new solutions, and this may lead to the
perception that the Service's implementation of the Act is not
consistent or uniform.

However, the Service also realizes it is essential that the Act
be consistently and uniformly implemented. To that end, the
Service, in conjunction with the National Marine Fisheries
Service, has many guidance documents under development for use on
a national basis. These include the following:

0 Draft Petition Management Guidance - under the Act, any
citizen has the right to petition the Service to list or
de-list species. This working draft guidance would
ensure that petitions are considered in a uniform and
consistent manner throughout the Nation.

0 Draft Candidate Assessment Guidance - working draft

guidance on how the Service will assess candidate species
is being tested in all offices with listing
responsibilities.

0 Listing guidance - the second edition of this guidance was
finalized last year and is being used throughout the
Service to ensure that listing decisions are made based on
sound scientific and commercial data.

0 Draft Vertebrate Population Policy - provides the

Service's definition of a "distinct population segment of
any species of vertebrate fish or wildlife" for the
purposes of listing, delisting, and reclassifying species.

0 Draft Interagency Consultation Guidance - would ensure
that the Section 7 consultation process will be
implemented in a consistent fashion among all agencies and
nation-wide.

o Recovery Planning and Coordination Guidance - provides a
process for the development of recovery plans,
establishment of recovery targets or goals, and the
implementation of recovery tasks.

0 Draft Habitat Conservation Planning Guidance - would
ensure that applicants for Section 10(a)(1)(B) permits,
the permits that result from the Habitat Conservation

255

Planning process, will be treated in a consistent and
uniform manner by all Service offices and the process will
be streamlined to the greatest extent possible.

In addition, the Service is now working under a number of
policies that were finalized with the National Marine Fisheries
Service (KMFS) in 1994. These joint policies detail how the
Service will work in closer partnership with the States, when and
how the Service will seek peer review of appropriate activities,
how the Service will ensure the best scientific and commercial
data are used when making decisions, how the Service will
minimize social and economic impacts in recovery planning through
broad participation and how the Service will endeavor to use an
ecosystem approach in endangered species activities. In
addition, a July 1994 policy stipulated that the Service will, to
the extent practicable, at the time a species is listed, identify
activities that would or would not likely constitute illegal take
under the Act.

More recently, a policy was developed that ensured private
landowners will be treated equally and fairly when entering into
Habitat Conservation Planning agreements with the Service. This
"No Surprises" policy helps ensure that once landowners have
signed an agreement, the Service will not require additional land
or financial compensation in the future.

Finally, the Administration's package of improvements to carry
out the Endangered Species Act, often called the "Ten Point
Plan," will ensure that the Act is implemented in a fair,
efficient, and scientifically sound manner. These improvements
build on the existing law to provide effective conservation of
threatened and endangered species and fairness to people through
innovative, cooperative, and comprehensive approaches.

QUESTION 2. Many citizens have described to us a Fish and
Wildlife Service that is rude, arrogant, unresponsive,
indecisive, unfair, and overreaching. Bow can an individual
citizen who feels that they have been mistreated seek redress
within your agency?

Answer: The Service always endeavors to treat all citizens in a
fair and courteous manner. Any person who feels they have been
treated in a less than fair or courteous manner should request
the name and phone number of the Field Supervisor or Regional
Director and explain the problem to that person. The appropriate
management personnel will review the situation and ensure that no
Service employee has acted in a less than professional manner.

QUESTION 3. There have been many criticisms raised zJoout the
credibility of the listing process. Please provide the conmittee
with a concise description of the listing process, including: (a)
how it works, (b) how decisions are made, (c) the timing of
decisions, (d) who makes decisions, (e) what decisions include
public input, (f) what data used in making the decision is
available to the public and what is not, (g) what individuals or
groups are consulted, and (h) what avenues are available for
appeal of listing decisions by those who support the listing and
those who oppose it.

256

Answer:

Bow are species listed? A species is proposed for addition to
the endangered or threatened species lists through publication of
a proposed rulemaking in the Federal Register; comments are
solicited from the general public (typically a 60-day comment
period) . In addition, to ensure that the specific public that
may be affected or may have special interest in the proposal
(e.g., landowners in the geographic area of the species) are
aware of the action, notifications are published in local
newspapers and, possibly, announcements are made through other
media. Specific landowners may be personally contacted by the
Service. Any member of the public may request a public hearing.
Also, in accordance with Service policy, peer review of the
proposal is requested from at least three individuals. The
Service takes very seriously its obligation to base decisions
under the Act on the best scientific information available,
recognizing that our knowledge of the natural world is
incomplete, and that research adds to our knowledge base.

After the Service analyzes public input and all available
scientific and commercial information, the final rulemaking (as
proposed or revised) or notice of withdrawal of the proposal is
published in the Federal Register, within one year of publication
of the proposed rule.

Usually, species are recommended for listing or de-listing, with
supporting information, at the field office level; the biology is
reviewed and conformity to Service policy is checked at the
Regional Office; and national consistency is approved and
biological factors substantiated in the Washington Office. The
Director of the Service makes the final decision on proposed and
final listing of species, except in certain cases (e.g., critical
habitat) where the Assistant Secretary for Fish and Wildlife and
Parks has signature authority.

Selecting candidates for listing: Species are selected by the
Service for proposed listing from a list of candidate species.
The Service develops candidate lists from petitions. Service and
other agency surveys, and other biological field studies,
reports, and publications.

Species to be listed in a given year are basically selected from
among those recognized as Category 1 candidates in accordance
with the Service's listing priority system. Category 1
candidates are those for which the Service has substantial
information on biology and threats to support the proposal to
list. Under the priority system, species facing the greatest
threat are assigned highest priority. Other criteria account for
the immediacy of the threat and the genetic distinctness of the
species as reflected by the taxonomic level at which it is
recognized. For example, a species with a high magnitude of
threat, imminent immediacy of threat, and where representing a
monotypic genus, would be assigned a priority ranking of "1" (the
highest priority for listing) . Conversely, a species with
moderate to low degree of threat of a non-imminent nature at the
subspecific taxonomic rank would be assigned a priority of "12"
(the lowest priority) .

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Petition process: Anyone may petition the Service to list, de-
list, or reclassify a species to endangered or threatened.
Within 90 days of receiving a petition, the Service must make a
finding as to whether the petition presents substantial
information that listing and delisting may be warranted. A
notice of the finding is published in the Federal Register. If a
positive finding is made, the Service must initiate a review of
the status of the species (e.g., review of literature,
communication with experts, and review information in Service
files) .

Within 1 year of receipt of a petition for which a positive 90-
day finding is made, a finding is required as to whether the
petitioned action is warranted or not warranted. A finding of
warranted must lead to a proposed listing within 3 0 days, under
Service policy, unless the Service finds that immediate proposal
is precluded by higher priority listing activities. In order to
make a warranted but precluded finding, the Service must also
show expeditious progress in its overall listing program (e.g.,
candidates of higher priority are being treated first) . Any
warranted but precluded finding must be re-examined on each
successive anniversary of the petition's receipt until the
species is proposed or the petition is found to be not warranted.

Between 1990 and 1993, the Service received a total of 206
petitions to list U.S. species. As of March 1995, findings had
been made for 183 of these as follows: 141 (77%) were turned
down at either the 90-day or 12-month stage; 42 (23%) were found
to warrant listing.

Negative 90-day findings, not warranted findings, and warranted
but precluded findings are subject to judicial review.
Individuals may challenge listing decisions for alleged
substantive or procedural violations of section 4, or by filing
suit against the Service or Department of the Interior for
failure to meet the statutory time-frames of the Endangered
Species Act.

Criteria for listing: A species warrants protection under the
Act if it meets the definition of either "endangered" or
"threatened" in the Act. An "endangered" species is one that is
in danger of extinction throughout all or a significant portion
of its range. A "threatened" species is one that is likely to
become "endangered" within the foreseeable future throughout all
or a significant portion of its range. The following factors are
considered when assessing whether a species is endangered or
threatened:

the present or threatened destruction, modification, or

curtailment of its habitat or range;

over-utilization for commercial, recreational, scientific,

or educational purposes;

disease or predation;

the inadequacy of existing regulatory mechanisms; or

other natural or man-made factors affecting its continued

existence.

By law, listing decisions must be based solely on the best
available scientific and comnercial (trade) data.

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How affected interests are involved in the listing process?
As part of the listing process, the Service's regional and field
offices are responsible for contacting involved or affected
local, State, and Federal agencies, affected or interested
conservation or industry groups, and biologists or scientific
groups interested in and/or knowledgeable about particular
species. The Service also makes efforts to contact any
potentially affected landowners. Contact with interested or
knowledgeable parties is generally initiated at the time a
Service field office begins to prepare a proposed rule. This
pre-proposal coordination is intended to (1) advise parties that
the Service is considering taking a particular regulatory action,
and (2) request information.

Once a proposed rule is published, the Service issues news
releases and special mailings — sometimes to hundreds of parties —
directly informing the scientific community. Federal and State
agencies, and major landowners. The Service also publishes a
summary of the proposal as a legal notice in newspapers serving
each area in which the species is believed to occur. Where
public interest is great, or when requested (within 45 days of
proposed rule publication) , the Service holds public hearings.
Information received at public hearings and during the public
comment period is analyzed and considered in the final rulemaking
process.

QUESTION 4: There have been criticisms that mistakes are
sometimes made in listing a species that should not cpialify for
listing and correcting that mistake is extremely difficult.
Please outline those steps you take to insure that mistakes are
not made, to correct mistakes when they are made and the process
for delisting, including:

(a) how delisting decisions are made,

(b) who makes the delisting decisions,

(d) what delisting decisions include public input,

(e) what data used in the decision is availaO^le to the public
and what is not,

(f) what individuals or groups are consulted, and

(g) what avenues are available for appeal of delisting decisions
by those who support the delisting and those who oppose it.

Answer: A species is removed from the Lists of Endangered and
Threatened Wildlife and Plants if the Service substantiates that
it is neither endangered nor threatened. Removal must be
supported by the best scientific and commercial data available
after conducting a thorough status review of the species.
Delisting can occur if the data support that the species is not
endangered or threatened due to:

* extinction of the species;

* recovery of the species to the point where it no longer
needs the protection of the Act; or

* new data or reinterpretation of the data which indicates
that the classification was made in error.

The Service generally waits for a period of time before removing
a species from the list if it is suspected of being extinct.
This leaves protections in place in case additional populations
are found. Species feared to be extinct that were later
rediscovered include the black-footed ferret and the Palos Verdes
blue butterfly. Most of the species that were delisted due to
extinction are believed to have become extinct before they were
protected under the Act.

The principal goal of the Service in implementing the Act is to
return listed species to a point where protection is no longer
required. After listing, recovery plans are developed. Many of
these plans contain specific goals for the species that can
trigger reclassification to threatened status, or delisting.

When making a listing decision the Service uses the best
scientific and commercial data available. However, the Service
is open to new information as it becomes available. New
populations may be discovered or issues may arise about taxonomy.
In a few cases, this new information has been sufficient to de-
list a species.

Whatever the reason for delisting, the process is similar to the
listing process (see response to question number 3) . A proposed
rule for delisting is developed by a regional or field office.
If approved by the Director, this proposed rule is published in
the Federal Register. Public comment on the proposal is
requested and peer review is requested by at least three
individuals. After reviewing the status of the species,
conferring with the States and others, and thoroughly reviewing
comments on the proposal, the Service may prepare a final rule to
de-list the species. The Director of the Service makes the final
decision on delisting, but the process includes the public, the
States, other agencies, and all levels of the Service. Comments
on the proposal — both supporting and opposing — are addressed in
the final decision document ( final rule or withdrawal notice)
which is also published in the Federal Register.

The proposed and final rules summarize the data used for
determinations. A bibliography of the studies referenced is
included in the rule or, if lengthy, is available upon request.
The administrative record upon which listing and delisting
decisions are made is available for public review in the
appropriate field, regional, or Washington, D.C. offices.

There are ample opportunities to provide input into the process
by commenting and/or requesting a public hearing. The public can
also provide its opinion through the petition process by
petitioning the Service to de-list or to relist a delisted
species if they provide significant new information.

As of March 31, 1995, seven species had been delisted because
they are deemed extinct, seven had been delisted due to recovery,
and eight had been delisted because current information indicates
the classification was made in error. Certain populations of the
gray whale and the brown pelican also have been delisted. The
American alligator, although recovered, remains on the
"similarity of appearance" list to facilitate law enforcement for
endangered crocodilians such as the American crocodile.

260

QUESTION 5. What role does peer review currently play in
insuring the integrity of scientific decisions that must be made
by the Department of the Interior? Does the Department have any
recoitmendations for inproving the peer review process in future
legislation?

Answer: The Service makes it standard practice to subject
Service decisions to independent expert review. Decisions on
information regarding a species' range, abundance, status, and
threats that may be present are made subsequent to either formal
or informal review by experts in the field. Often these experts
are employed by colleges or universities, work for other Federal
or State agencies, or may be working in some other Division
within the Service. Likewise, a wide range of experts are
consulted when writing Recovery Plans for species. Specialists
are usually consulted on complex Section 7 biological
consultations, to ensure that the best information on species'
natural history is known. Many consultations involve areas of
science outside of the Service's expertise - such as the
operation of dams to maintain constant water discharge rates -
and specialists in these specific areas are constantly polled for
information and opinions.

To reinforce the consistent manner in which the Service seeks
peer review of decisions, the Service issued a July 1994 policy
that specifically addresses the issue. Independent peer
reviewers should be selected from the academic and scientific
community, Tribal and other native American groups. Federal and
State agencies, and the private sector. The joint Service and
National Marine Fisheries Service policy makes the following
points.

o In listing, the Service will solicit the expert opinions of
at least three appropriate and independent specialists
regarding pertinent scientific or commercial data and
assumptions relating to taxonomy, population models, and
supportive biological and ecological information for species
being considered for listing.

o In recovery, the Service will use the expertise of and
actively solicit independent peer review to obtain all
available scientific and commercial information from
appropriate local. State and Federal agencies. Tribal
governments, academic and scientific groups and individuals,
and any other party that may possess pertinent information
during the development of draft recovery plans for listed
animal and plant species.

Where appropriate, the Service will use independent peer
review to review pertinent scientific data relating to the
selection or implementation of specialized recovery tasks or
similar topics in draft or approved recovery plans for listed
species.

0 In special circumstances, specific questions may be raised
that require additional review prior to a final decision
(e.g., scientific disagreement to the extent that leads the
Service to make a 6-month extension of the statutory
rulemaking period). The Services will determine when a

261

special independent peer review process is necessary and will
select the individuals responsible for the review.

QUESTION 6. How does the Department insure that there is no
conflict of interest or economic self enrichment by those who
propose species for listing? Does the Department have any rule
or policy with regard to the payment of federal funds for further
study of listed species to the individual or group proposing the
species for listing?

Answer: Section 4(b)(3) of the Endangered Species Act of 1973,
as amended (ESA) , allows any interested individual to petition
the Fish and Wildlife Service (Service) or NMFS, as appropriate,
to list, de-list, or reclassify species, or to revise a listed
species' critical habitat. On the average, the Service receives
35 to 40 petitions annually, to amend the lists of threatened and
endangered species. However, it is the Service's broader
candidate assessment process that sets the Service's listing
priorities, not the petition process.

In response to an earlier inquiry from the Committee on Interior
and Insular Affairs, the General Accounting Office (GAO) examined
the issue of granting funds to perform studies associated with
the listing of plant and animal species. Of the 222 contracts
for studying endangered species that were examined, 38 contracts
were awarded to study species for which petitions had been
submitted. However, there was only one instance in which the
petitioner was associated with a Service contract award (1992 GAO
Report). In many instances, the petitioner is either the leading
authority on a particular plant or animal species or has the
latest available scientific information.

There are also Departmental certifications that are applicable to

federal grants and cooperative agreements that must be completed

by the recipient of such a grant. Grants cannot be awarded to an
individual if there is a conflict of interest.

QUESTION 7. Does the Department have a position on whether the
Act should continue to allow the listing of a subspecies or
distinct population segment?

Answer: The Department believes that to accomplish one of the
primary purposes of the Act (that is, to provide a program for
the conservation of threatened and endangered species) the
ability to list subspecies and populations must be retained. It
is vital that the genetic diversity of threatened and endangered
species and the geographic distribution of taxa be conserved.

Species are often comprised of smaller groupings - e.g.
subspecies or populations. These components may be genetically
distinct within the species, and improve the ability of the
species as a whole to survive in response to environmental
stresses and long-term change. The more genetically diverse a
species, the greater the probability that the species will be
able to adapt and survive.

Should a subspecies begin to decline, this may be a warning that
the species as a whole nay be in danger. Early recognition of
such a trend greatly increases the probability that recovery can
be achieved while usually minimizing the cost. The ability to

262

list subspecies and distinct vertebrate population segments
provides the Department with a valuable tool that allows recovery
actions to begin before the species rangewide is in trouble. It
will also provide an opportunity to recognize that certain
populations of an endangered species may merit classification as
threatened or perhaps merit delisting a result of conservation
measures that reduce or eliminate threats in those portions of
the species range. The authority to list populations allows the
Secretary to identify the conservation status of each population
thereby avoiding the need to overregulate activities for
populations that are not endangered.

Lastly, there is strong public support for recognizing and
affording special protection for groupings below the species
level. For example, bald eagles are protected as threatened in
the lower 48 states. Gray wolves and grizzly bears are listed in
the lower 48 States, but not in Alaska. This allows appropriate
protection and conservation where it is needed without overly
regulating the animals where their populations are healthy.

QUESTION 8. Should economic consequences of listing be
considered during the listing process?

Answer: Designation of a species as endangered or threatened is
a biological determination, not an economic one. Once a species
is biologically determined to be in danger, economic evaluations
on how to most efficiently bring about recovery are then
appropriate.

It is difficult, if not impossible, to determine the monetary
"worth" of a species. A species that may be aesthetically
worthless to one person may be beyond value to another. Also, a
species that may seem to be of little economic value may, in the
future, be found to have incredible worth. A good example is the
Pacific yew tree. In the past, this Pacific Northwest tree was
discarded as nearly worthless wood. However, it has recently
been found to contain chemicals of extremely high value in
treating certain types of cancers.

Species are the building blocks that create ecosystems, and
ecosystems are essential in maintaining an inhabitable Earth.
Losing species has been compared to pulling the rivets from an
aircraft; if you pull enough rivets, at some point the aircraft
will no longer function. No one can determine what may be the
ultimate cost of losing a species.

The appropriate time to consider economic consequences is when
the actions needed to recover species are being planned and
evaluated. It is then prudent to select recovery actions that
are economically efficient as well as effective in meeting
recovery goals. Brought into this equation are factors affecting
local economies, community needs, and other societal concerns.

QUESTION 9. Does the Department support or oppose judicial
review of decisions to list or not list species?

Answer: The Department believes that listing decisions should be
made by Service adrinistrators based on the recommendations of
professional biologists evaluating the best scientific and

commercial data available. The Department makes listing
decisions based on the five threat factors set forth in the Act.
Determining the status of a plant or animal species and
evaluating the threats to the species is a decision that must be
based on a biological evaluation. Should a listing decision
undergo judicial review, the biological rationale for our
decisions should be clear and defensible.

QUESTION 10. What role does designation of critical habitat as
provided in Section 4 of the Act play in protecting species and
what restrictions are placed on land, both public and private,
when a designation of critical habitat includes either public or
private land, or both?

Answer: Clearly, species require habitat for survival and
recovery. The Act requires the Secretary to designate critical
habitat to the maximum extent prudent and determinable
concurrently with listing a species. In determining what areas
are critical habitat, the Service considers those physical and
biological features that are essential to the conservation of the
species and that may require special management considerations or
protection — such as areas for shelter, breeding, feeding, and
population growth.

Although critical habitat may be designated on private or State
lands, activities on these lands are not affected by the
designation unless a Federal permit or other Federal
authorization or funding is involved. It does not have
regulatory implications for private activities that are directly
or indirectly connected with Federal funding or Federal
permitting, licensing, or other authorization.

With regard to federal agencies, the Endangered Species Act
regulations require agencies to consult with the Service on
actions they plan to take that may affect listed species or
designated critical habitat. Therefore, if a Federal agency
plans, for instance, to dredge a river or issue timber leases in
an area designated as critical habitat, it must first discuss the
project with the Service. Because the law prohibits Federal
actions that would adversely modify a species' critical habitat,
the agency and the Service would attempt to develop a reasonable
and prudent alternative. However, depending upon the species and
its particular habitat needs, many activities can be undertaken
within critical habitat without significantly impacting the
characteristics of the habitat essential to the species.

Designating critical habitat also assists private. State, and
Federal agencies in planning future actions, since the
designation identifies those habitats that will be given special
consideration in section 7 consultations. With the designation
of critical habitat, potential conflicts between projects and
endangered or threatened species can be identified and possibly
avoided early in the agency's planning process.

Unlike listing determinations, where only science may be
considered, the Act requires that socio-economic considerations
be factored into critical habitat designations. In the course of
the critical habitat designation process, the Service must
conduct an economic analysis that estimates hov the designation

264

may affect Federal lands, as well as non-Federal activities
authorized or funded by Federal agencies. Economic impacts
associated with listing or other related statutes are not
included in the analysis. The draft analysis isolates the
incremental economic and conservation effects of the critical
habitat designation. Economic effects are measured by evaluating
factors such as changes in national income, regional jobs, and
household income. Certain areas may be excluded from the
critical habitat designation if the economic benefits of
exclusion outweigh the benefits of including the area. Such
areas cannot be excluded if their exclusion would result in
extinction of the species.

QUESTION 11: When the Fish and Wildlife Service consults with
the Corps of Engineers in the issuance of a 404 permit covering
property where a listed species might be present, the Fish and
Wildlife Service has been requiring mitigation in various forms.
(A) What legal authority allows the Fish and Wildlife Service to
require mitigation?

Answer: Under the ESA, Corps of Engineers' permits are subject
to the consultation provisions of section 7. Those provisions
require the Corps to ensure that the permitted actions are not
likely to jeopardize the listed species (section 7(a)(2)), and
that anticipated incidental take be minimized (section 7(b)(4)).
If the project is not likely to jeopardize the continued
existence of a listed wildlife species, but some individuals of
the species are expected to be taken incidental to the activity,
then the Service is not only authorized but required under
section 7(b)(4) of the Act to specify reasonable and prudent
measures and terns and conditions that are needed to minimize the
impacts of such incidental take.

The Service encourages other federal agencies to review their
actions as early as possible in the planning process so that
endangered species conflicts can be identified, avoided or
remedied at minimum or no cost and with a maximum benefit for the
species involved. The Service assists federal agencies in this
process through informal consultation. If however, a project is
likely to jeopardize the continued existence of a species then
the Service will work with the federal action agency to identify
reasonable and prudent alternatives to avoid jeopardy.

For impacts to species and habitats not subject to the
requirements of the ESA, the Service may also include mitigation
recommendations pursuant to the Fish and Wildlife Coordination
Act (FWCA) . Under the FWCA, agencies proposing to construct or
authorize projects affecting water resources are required to
consult with the Service, and the Service is obligated to provide
its recommendations on fish and wildlife resources. However,
these recommendations, if provided, are not binding on the action
agency. In the case of a Corps 4 04 permit, the Corps is required
only to give Service recommendations full consideration as a part
of the Corps' public interest determination for the permit.

QUESTION 11(B): What are the criteria for the types and amounts
of mitigation that the Fish and Wildlife Service requires?

265

Answer: The amount and nature of the incidental take terms and
conditions depend upon the nature and amount of the impact to the
. species, the particular features of the proposed project, and how
similar projects in the area are being handled. The consultation
regulations require that such terms and conditions involve only
minor changes that do not alter the basic design, location,
scope, duration, or timing of the action. (50 CFR, 402 . 14 (i) (2) )

For species and habitats not subject to the requirements of the
ESA, the Service may also provide recommendations consistent with
the guidelines set forth in its Mitigation Policy (46 FR 7644).
The Mitigation Policy establishes a framework for developing
recommendations on mitigating impacts to fish and wildlife based
on the affected habitat's scarcity or abundance, and the value of
that habitat to particular species.

QUESTION 12. At what point and in what form should jobs,
economic concerns, and inpacts on private property be considered
in protecting species under ESA?

Answer: The ESA currently calls for use of the "best scientific
and commercial data available" in listing and many other
biological decisions; specific provisions for economic
considerations exist for critical habitat determinations.
However, concerns for the needs of affected parties also enter
into many deliberations. For example, during section 7
consultation, after determining the biological needs of a species
that is likely to be jeopardized by a project as originally
designed, the Service works with the Federal agency and applicant
to determine whether there are alternative ways of proceeding
with a modified project that avoid jeopardy. Section 7 requires
the Service to identify reasonable and prudent alternatives, if
available, under the regulations such alternatives must be
economically and technically feasible. Similarly, under the
guidance for enhancing participation on recovery planning, the
Service seeks increased stakeholder involvement in the
development and implementation of these plans and is required to
minimize social and economic impacts under this guidance.
Incidental take permits are based on habitat conservation plans
developed by the affected parties, and consider both the biology
and socioeconomic effect on the parties. Many of these actions
are not dictated by ESA, but are applied as a matter of sound
public policy.

The key to successful implementation of the ESA and the recovery
of listed species that is its primary goal is an appreciation
that without the cooperation and support of the general public,
little progress can be maintained. With that in mind, we strive
to keep the impacts on those affected to the minimum necessary
to meet the biological requirements of the ESA. Accordingly, we
attempt to fully consider the impact of our actions on the public
and reduce adverse impacts where possible.

QUESTION 13: In almost every case where there is a conflict
between species protection and resource users, the conflict has
usually started as a lawsuit filed by an environmental
organization under the civilian suit provisions of the Endangered
Species Act. Does the department have a position on the citizen

suit section and what can b« done to insure that public policy is
driven by good science and public consensus rather than lawsuits?

Answer: We disagree with the premise that "in almost every case
where there is a conflict between species protection and resource
users, the conflict has usually started as a lawsuit." In the
large najority of cases where there are such conflicts, they are
settled at the local level (between Fish and Wildlife Service
field offices and the affected parties) . For example, it is the
Service's policy to resolve resource-development conflicts as
early as possible in the planning stages to allow flexibility for
solutions before options are foreclosed. When such conflicts are
resolved early, they do not become "issues;" successful
negotiations rarely make the news. To illustrate the point, a
five-year General Accounting Office survey of all Federal actions
involving listed species reviewed by the Service determined that
only 0.1% were blocked due to listed species concerns.

The position of the Department of the Interior (and the Service)
is to use the best scientific and commercial information
available and to uphold the law as expressed in the Act. The
Act, in itself, represents public consensus as expressed by
Congress. On July 1, 1994, the Departments of Interior and
Commerce jointly published policy statements relative to the Act.
Among these policies are:

-A requirement for peer review of scientific data in listing
and recovery activities. This is intended to complement
current public review processes.

-Criteria setting information standards under the Act,
establishing procedures and providing guidance to ensure that
decisions represent established scientific standards based on
the best scientific and commercial data available.

-Expanded public participation in recovery planning and
implementation .

Citizen suit provisions in the Act aid in ensuring that good
science is considered to the fullest extent possible. However,
tighter staffing and funding constraints in future years may
complicate the Service's ability to handle increasing regulatory
workloads, as well as defend an expanding docket of citizen
suites.

QUESTION 14. Are the Department's new *'Safe Harbor" policies
lawsuit proof?

Answer: No public policy is "lawsuit proof" these days, but the
Service and private landowners have every reason to believe that
"Safe Harbor" will prove to be a precedent-setting and successful
program. The Department will vigorously defend any challenges
filed against it or against participating landowners.

QUESTION 15: How would the Department increase the role of the
states in ESA decision making?

267

Answer: Last July, the Administration issued policy calling for
Federal agencies to encourage greater participation by the States

in the conservation of candidate species;

by soliciting the states' expertise in listing decisions and
determinations of recovery retjuirements . The states already
provide leadership and expertise in many recovery planning
and implementation efforts, and we encourage thera to increase
this role;

by acting as an important source of scientific data for
section 7 consultations;

by offering the states the opportunity to participate in
incidental take permit programs; and

by encouraging coordination between the states for shared
species and ecosystems by seeking appropriate levels of
funding for conservation programs under section 6 of ESA.

In addition, the Administration has proposed in the March 1995 10
point plan the following changes that Congress could make to
increase the role of states in ESA decision making:

- Require the Secretary to concur with a state conservation
agreement and suspend the consec[uences under the ESA that would
otherwise result from a final decision to list a species if a
state has approved a conservation agreement and the Secretary
determines that it will remove the threats to the species and
promote its recovery within the state. Suspension of the
consequences of listing a species pursuant to an approved state
conservation agreement should be permitted at any point before or
after a final listing decision.

- Require that special consideration be given to State
scientific knowledge and information. Petitions would be sent to
each affected State fish and wildlife agency. Require the
Secretary to accept a State's recommendation if it recommends
against proposing a species for listing or de-listing unless the
Secretary finds, after conducting independent scientific peer
review, that listing is required under the provisions of the ESA.

- Provide States the opportunity to assume lead
responsibility for developing recovery plans and any component
implementation agreements. Establish mechanisms to ensure
participation by and coordination with each affected state in the
development of the recovery plan.

- Authorize appropriate State agencies, as well as the
Secretaries of Interior and Commerce, to enter into voluntary
pre-listing agreements with cooperating landowners to provide
assurances that further conservation measures would not be
required of the landowners should a species subsequently be
listed.

- Provide a State with the opportunity to assume
responsiljility for issuing permits under section 10(a)(2) for

areas within a State which have been identified for such
assumption in an approved recovery plan or for which there is
otherwise an approved comprehensive, habitat-based state program.

QUESTION 16. What is the Department's position on condensation
for property owners when their property is used as habitat for
wildlife? What is your position on the compensation provisions
of B.R. 925 as passed by the House of Representatives?

Answer: The Service supports compensation to landowners if their
property is "taken" by federal regulatory action in accordance
with the Supreme Court's interpretation of the requirements of
the Fifth Amendment. H.R. 925 as passed by the House goes far
beyond any court interpretation of the requirements of the Fifth
Amendment, by requiring compensation whenever an ESA-related
action lowers the value of even a portion of a property by 20% or
more. The Service strongly opposes H.R. 925.

The Department believes that, if enacted, H.R. 925 would spawn
litigation that could significantly affect how the Service
administers many ESA programs. Effects of the bill would be
especially injurious for species with significant portions of
their ranges on private lands.

The bill could affect how the government acquires lands for
wildlife purposes. Currently, the Service uses a Land
Acquisition Priority System to identify high priority acquisition
targets. This bill could force purchase of lands with less-than-
ideal qualifications and in an unplanned and uncoordinated
fashion. Furthermore, such lands might present a management
burden if they lack significant long-term wildlife values or are
in inconvenient locations.

Budgetary impacts of this bill would be significant. Potential
costs include costs of compensation payments, land acquisition
costs, and costs of administering lands acquired. However, it is
difficult to accurately predict fiscal impacts given the lack of
specifics in how requirements of the bill would be administered
and the many uncertainties associated with how the law would
actually work in real-world circumstances.

In lieu of this approach, the Administration promoted ten
principles to guide the Administration's effort for reforming and
implementing the Endangered Species Act. Among these, the
Administration will ensure that ESA will be implemented in a
manner minimizing thp social and economic impacts; that
landowners will be tteated fairly and with consideration; that
incentives for landowners to conserve species will be created;
and that effective use of limited public and private resources
will be accomplished by focusing on groups of species that depend
on similar habitats. For example, on July 20, 1995, the Service
published a proposed rule exempting certain small landowners and
low impact activities from Endangered Species Act requirements
for threatened species. It proposes to e.xempt such activities
that are presumed to individually or cumulatively have little or
no lasting effect on the likelihood of survival and recovery of
threatened species and, therefore, have only minor or negligible

adverse effects. In particular, the following activities would
not be regulated under this proposal:

o activities on tracts of land occupied by a single
household and used solely for residential purposes;

o one-time activities that affect 5 acres or less of
contiguous property if that property was acquired prior to the
date the species was listed; and

o activities which are identified as posing negligible
impacts to listed species.

QUESTION 17: During the consultation process, what procedures
are available to the public to obtain and have input into
biological assessments?

Answer: Biological assessments are prepared by the agency
proposing the action. The assessments list and analyze expected
impacts on listed and proposed species. The development of an
assessment is frequently governed by the administrative
procedures of the agency. Often, NEPA requires public input
during scoping, proposed action development, and final preferred
alternative selection. It is at these stages that the public may
have access to the process. Of course, if the Federal action
involves a permit, then the permittee has full access to the
process.

QUESTION 18: Provide the comnittee with information on the
amount of federal funds expended to in9>lement the President's
Forest Plan in the Pacific Northwest, including all funds for job
retraining and for funds to state and local governments to
replace payments in lieu of taxes.

Answer :

Figures ($ 'ooo) enacted for Interior agencies for fiscal year
1995:

-"Jobs in the Woods"

Bureau of Land Management 11,977

Fish and Wildlife Service 3,513

Bureau of Indian Affairs 2,595

Subtotal 18,085

-Forest Plan Implementation

Bureau of Land Management 20,810 '

Fish and Wildlife Service 12,227
Bureau of Indian Affairs 3,660
National Park Service 136

Subtotal 36,'8l3

-Timber Program

Bureau of Indian Affairs 1, 497

TOTAL, DEPARTMENT OF

THE INTERIOR 56,415

270

QUESTION 19. What is the total acreage in the United States
available for haJaitat on federal lands? The total in the lower
48 states? Break down the numbers as to classification?

Answer: The breakdown by Federal agencies is as follows.

Agency

Bureau of Land Management

U.S. Forest Service

Fish and Wildlife Service

National Park Service

Department of Defense

Corps of Engineers

Bureau of Reclamation

Bureau of Indian Affairs

Department of Energy

Other Civil Agencies

Tennessee Valley Authority

Agricultural Research Service

NASA

Department of Transportation

TOTAL 706.0

Estimated

Total

Million Acres

268

219

An additional 51.8 million acres are Tribal Trust Lands.

However, it should be noted that these estimates are for lands in

Federal ownership, not estimates of areas that could provide
habitat for plant and animals.

QUESTION 20 (A) : Does the Act currently allow the Fish and
Wildlife Service to choose the recovery plan for the species that
has the least cost and the least impact on jobs and the economy?

Answer: The ESA requires the developr.ent of a recovery plan that
will meet the recovery needs of the species. After ensuring that
level of support to the species, the Fish and Wildlife Service is
not constrained in determining the best alternative way to
achieve that recovery. For example, in determining how to
accomplish habitat protection for the species the Service has
traditionally sought to secure agreements or easements before
seeking fee acquisition, which could affect local ownership and
tax base relationships. On July 1, 1994, the Departments of the
Interior and Commerce announced their joint policy establishing
guidelines for recovery planning, expanding the constituency of
recovery teams to include State agencies, private individuals and
organizations, and other stakeholders that are affected by
recovery planning and implementation. The policy and guidance
require efforts to minimize social ar.d economic impacts
consistent with timely recovery of listed species.

QUESTION 20(B): Bow do economic issues currently affect the
choice of recovery options?

Answer: The Fish and Wildlife Service has learned that decisions
to retain part of a resource base fcr maintenance and recovery of
a listed species may actually affect consideration and decisions
between competing job and eccr.cmic ir.-.erests. Pursuant to the
Administration's July pciicy, guidelir.es are being drafted to

271

activities

Brovm pelican Reduction of pesticide/contaminants

and improved habitat conservation
measures

Gray whale Natural recovery following

cessation of commercial whaling

272

PAGE 106
LINE 20

QUESTION: How many northern spotted owls presently live in the
Pacific northwest?

ANSWER: There was no estimate of population size of northern
spotted owls made at the time of listing of the species, and no
historical estimate is available. Counts of owls observed each
year have been conducted since listing, but they are not
estimates of population size. The USDI Northern Spotted Owl
Recovery Team indicated that spotted owls were known to be
located at approximately 4,600 sites on all land ownerships
between 1987 and 1991. Option 9 states that the actual
population is undoubtedly larger because a portion of the range
had yet to be surveyed. For the 4(d) rule, this count of known
sites was updated to approximately 5,600. This "increase" from
4,600 to 5,600 sites simply reflects an increase survey effort,
but still is not a population estimate. The number of known owl
sites does not give an indication of status, rather population
trend (demographic) studies and habitat trends are the best
indication of the status of the owl population. Demographic
studies at the time of listing and at present continue to suggest
a declining population.

273

PAGE 107,
LINE 12

QUESTION: How many owls would you say are necessary to ensure
the survival of the species?

ANSWER: No goal based on population size (i.e. actual number of
individuals) has been put forward. The recovery goal is to
maintain or establish a stable or increasing population over
time, as determined from demographic studies. In a previously
unpublished draft recovery plan, the owl population must remain
stable or increasing for at least 8 years, as indicated by
density and demographic estimates, to be considered for
delisting. Analyses also must indicate that the population is
not likely to need the protections of the Endangered Species Act
within the foreseeable future. Ultimately, the question of
delisting hinges on long-term stability and viability of the
population and threats to the population rather than specific owl
numbers.

274

PAGE 108, LINE 5

Facts about the
Endangered
Species Act

(Rev. June/July 1995)

275

Facts about the
Endangered Species Act

I. Endangered Species Act At A Glance

II. Endangered Species Act Success Stories

III. Endangered Species Act: The Rest of the Story

276

Endangered Species Act
At A Glance

Number of Listed Species

(as of April 30, 1995)

■ U.S. species-956

■ Foreign species-560

■ Total- 1,516 (Dual status species are counted
only once)

■ Of U.S. species, 430 species are animals.
526 are plants.

■ Of the listed U.S. species, 759 are "endangered,"
203 are "threatened " Six U.S. listed animals
have dual status.

■ The list includes mammals, birds, reptiles,
amphibians, fishes, snails, clams, cmstaceans,
insects, arachnids, and plants. Groups with the
most listed species are (in order) plants, birds,
fishes, mammals, and bivalves

■ An "endangered" species is one that is in dan-
ger of extinction. A "threatened" species is one
likely to become endangered Both receive the
same protection, but there is more manage-
ment flexibility and a possibility for permitting
regulated "talcing" of threatened species.

Recovery

The status of 27 percent of species is unknown,
primanly because of budget and staffing con-
straints within the Fish and Wildlife Service.

2 percent of listed species are believed extinct
The Service has been conservative in removing
possibly-extinct species from the list because of
the chance they might be rediscovered, as
recently occurred with the Palos Verde blue but-
terfly in California.

These statistics should be considered in light of
the fact that many species have been added to
the list only within the last few years

Budget

Congressional appropriations for the Fish and
Wildlife Service's endangered species program:

FY 95-$83.3 million*

FY 94-$67.5 million*

FY 93-$45.8 million

FY 92-$42.3 million

FY 91 -$32.0 million

FY 90-$24.3 million

513 (54 percent of listed U.S. species) are
covered by approved recovery plans.

232 additional species have draft recovery
plans

As reported in the 1992 Report to Congress,
nearly 40 percent of listed species are stable or
improving.

277

ENDANGERED SPECIES ACT AT A GLANCE

Numbers of Listings per Year

■ The Fish and Wildlife Service is committed to
propose for listing about 100 species per year
through 1996 under a 1992 court settlement
with the Fund for Animals and other environ-
mental groups.

■ Listings by year since the settlement:

FY 93-92; FY 94-105; FY 95-77 (to 2/28/95)

Previous listings by fiscal year:

1967 78 1981.

1970 243 1982.

1971 80 1983.

1972 9 1984.

1973 21 1985.

1974 0 1986.

1975 12 1987.

1976 166 1988.

1977 46 1989.

1978 39 1990.

1979 34 1991.

1980 56 1992.

..5
.7
23
45
57
52
52
54
35
46
53
93

Proposed and Candidate Species

3,698 are listed as "category 2" candidate
species. These are taxa for which additional
information is needed to support a proposal to
list. It is likely that many species on category 2
will be found not to warrant listing.

Habitat Conservation Plans

■ The Endangered Species Act provides for "habi-
tat conservation plans" (HCP) to give flexibility
to private landowners who have listed species
on their property.

■ Under an "HCP," the landowner receives a per-
mit that allows "incidental take" of listed
species in the course of certain activities, such
as development, provided that the landowner
follows certain other steps to provide for con-
servation of the species.

■ This Administration is making greater use of
HCP's than did previous Administrations. There
are currently about 73 approved HCP's and
more than 170 in development.

■ HCP's oflen work better for large landowners
(such as timber companies and other corpora-
tions) than for owners of very small tracts of
private land, but some HCP's have been negoti-
ated with small landowmers.

■ 106 candidate species are currently proposed
for listing.

■ 293 candidate species are listed as "category 1"
candidate species These are taxa for which the
Service has sufficient information to support a
listing proposal, but which have not been pro-
posed because of other work priorities.

92-551 - 95 - 10

278

Endangered Species Act
Success Stories

Virginia: Clinch River Riparian
Restoration

Nearly 10 miles of fencing and several alternative
water supply structures have been installed on pri-
vate land along the Clinch River and its tributaries
in southwest Virginia in an attempt to eliminate
streambank erosion from overgrazing and tram-
pling of endangered fresh water mussels by cattle
Both the fencing and the water structures were
financed jointly by the U.S. Fish and Wildlife
Service, The Nature Conservancy the Natural
Resource Conservation Service and included con-
tributions from private landowners. The U.S. Fish
and Wildlife Service has worked cooperatively
with The Nature Conservancy and the U.S.
Department of Agriculture to implement this pro-
gram. Approximately a dozen landowners have
agreed to modify their cattle management prac-
tices to eliminate the trampling of mussel beds
and to improve water quality for the mussels by
nutrient and sediment reduction. More farmers are
expected to join this program

Contact:

■ Spence Conley, Public Affairs, Region 5
413-253-8325

■ Martha and Thomas Mewdome, private citizens
703-479-3057

Montana: Gray Wolf

In 1993, a pair of gray wolves established a terri-
tory along the Rocky Mountain East Front The ter-
ritory encompassed four ranches as well as state
and federal land, and meetings were held with the
affected land owners and three federal agencies.
The wolves denned in the middle of a cattle pas-
ture and the rancher was provided with an incen-
tive payment of $5,000 by Defenders of Wildlife for
having wolf pups produced on his property. The

U.S. Fish and Wildlife Service initiated a study in
cooperation with the US Forest Service, Montana
Department of Fish, Wildlife and Parks and the
ranchers, to evaluate the wolf population Funding
for the study was provided by the Bureau of Land
Management, Boone & Crockett Club and Wolf
Haven International Ranchers actively assisted
with capture and radio collaring of two wolf pups
and reporting wolf observations Two yearling
wolves were relocated in April, 1994, due to live-
stock depredation, but none of the cooperating
parties requested removal of the wolf pack The
wolves produced at least three pups in April, 1994,
at the same den site as in 1993 and continue to use
the ranches as about half of their territory

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

■ A. Dood, ES Coordinator, Montana Department
of Fish, Wildlife and Parks

406-994-6433

Montana: Private Property and
Eagle Nesting

Louisiana-Pacific Corp owns land adjacent to
Nevada Lake where an active bald eagle nest
occurs. The corporation was aware of the bald
eagle nest and the potential to displace the eagles
due to proposed logging operations The corpora-
tion contacted the Montana Field Office of the U.S.
Fish and Wildlife Service and arranged a meeting
to schedule and coordinate logging operations
Agreements were reached on the timing and type
of logging, and monitoring after the logging was
completed confirmed successful nesting by the
pair of eagles.

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

279

ENDANGERED SPECIES ACT SUCCESS STORIES

Idaho, Montana, Wyoming:
Gray Wolf Reintroduction

Lower 48 States:

The American Bald Eagle

After nearly two years, 120 public meellngs, hear-
ings and open houses, and consideration of
170,000 public comments, the US Fish and
Wildlife Service produced a final Environmental
Impact Statement with a recommendation to
establish "non-essential, experimental" popula-
tions of wolves in two release areas, which com-
prise parts of Idaho, Montana and Wyoming,
including Yellowstone National Park The "non-
essential, experimental" designation allows flexi-
ble management of reintroduced animals under a
special provision of the Endangered Species Act,
which gives the Service the option of implement-
ing special rules to address the concerns of local
residents The Service subsequently established
guidelines which allow federal agencies, the
states, tribes and landowners to take action, when
necessary, to protect livestock or deal with prob-
lem wolves With those provisions in place, the
Service has completed the first step in reintroduc-
tion, bringing 29 Canadian gray wolves to
Yellowstone and central Idaho in January, 1995 If
allowed to return on their own, the wolves would
eventually repopulate the area, but without the
special management options now available and
requiring additional decades to reach recovery.
With continuing reintroductions over the next two
to four years, recovery levels of 100 wolves in each
reintroduction area would be reached by the year
2002, at a cost of about $6.7 million.

By 1963, the presence of DDT in the food chain,
which caused eagles and other birds to lay eggs
with shells that were too thin to last to hatching,
had precipitated a dramatic decline in the eagle
population to 417 nesting pairs. A ban on the use
of DDT and the protection afforded the eagle by
the Endangered Species Act had, by 1994,
increased the population nationwide to about
4,400 nesting pairs This impressive increase in
the eagle population allowed the US Fish and
Wildlife Service to propose in 1994 that the eagle
be reclassified in 43 states from endangered to
threatened, and to recommend eventual removal
from the endangered species list altogether,
although the latter action may not occur until the
year 2005 The eagle population today is consid-
ered quite strong, with the species doubling its
breeding population every 6 to 7 years The aver-
age number of eaglets produced per active nest
per year now indicates an increase in the species'
population of about 10 percent per year. The num-
ber of occupied active eagle nest sites increased
408 percent since 1974 and 32 percent since 1990.

Contact.

■ Susan Dreiband, Public Affairs, Region 3
612-725-3519

■ Georgia Parham, Public Affairs,
US Fish and Wildlife Service
202-208-5634

Contact:

■ Ed Bangs, Project Leader, Wolf Reintroduction
Program

406-449-5225

■ Georgia Parham, Public Affairs, U.S. Fish and
Wildlife Service

202-208-5634

280

ENDANGERED SPECIES ACT SUCCESS STORIES

Massachusetts: The Plymouth
Redbelly Turtle

The U.S. Fish and Wildlife Service listed the red-
belly turtle, a large, freshwater turtle with a shell
10 to 12 inches long when mature, as an endan-
gered species in 1980. The Plymouth redbelly is
found in 17 ponds and one river in Plymouth
County, Massachusetts. It is a mid-Atlantic to
southern species with its closest relatives in New
Jersey. Because of its small population size (there
are only about 300 breeding-age turtles in
Massachusetts) and its limited geographic range,
the Plymouth redbelly is susceptible to population
declines. But scientists have nonetheless made
steady progress toward achieving full recovery of
the species. A major recovery effort was the estab-
lishment in 1984 of the Massasoit National Wildlife
Refuge, a satellite of Great Meadows National
Wildlife Refuge in Sudbury, operated jointly by the
Service and the Massachusetts Division of
Fisheries and Wildlife. Biologists have made efforts
to protect turtle nests and hatchlings from preda-
tion. Cranberry growers in Plymouth County have
cooperated in the recovery program, the openness
of reservoirs and upland watershed areas man-
aged by the cranberry industry provide high quality
turtle nesting habitat. All of these efforts have
markedly improved the outlook for the turtle's
future and biologists now predict that reclassifica-
tion of the turtle to threatened will be possible by
the year 2000 if the recovery program is success-
ful, and full recovery may be achieved by 2015.

Contact:

■ Spence Conley, Public Affairs, Region 5
413-253-8325

■ Rachel F. Levin, Public Affairs, Region 5
413-253-8327

Ohio: Bald Eagle

Through successful restoration efforts by the Ohio
Division of Wildlife and protection under the
Endangered Species Act, bald eagles have signifi-
cantly recovered in Ohio. The 1995 count of nest-
ing pairs in the state was 29, compared to 4
nesting pairs counted in 1974. The US Fish and
Wildlife Service assists in helping to avoid or mini-
mize impacts to the birds through contaminants
monitoring and consultations under the endan-
gered species program.

Texas: Pecos Gambusia, Comanche
Springs Pupfish

The Texas Department of Parks and Wildlife, the
Texas Agricultural Extension Service, private
landowners, and the U.S. Fish and Wildlife Service
are working to create endangered fish habitat and
continue traditional agricultural practices in West
Texas. An agreement was reached between
landowners and Balmorhea State Park to guaran-
tee surface water in an artificial cienga (wetland
area). Ciengas are traditional habitat for the
endangered Pecos gambusia and Comanche
Springs pupfish. In exchange for providing water,
landowners have the flexibility to implement alter-
native pesticide measures around outer irrigation
canals.

Contact;

■ Tom Bauer, Public Affairs, Region 2
505-766-3940

281

ENDANGERED SPECIES ACT SUCCESS STORIES

Texas: An Agreement to Protect
Red-Cockaded Woodpeckers

In August 1994, the US Fish and Wildlife Service
signed a Memorandum of Agreement with
Champion international Corporation, the US
Forest Service, and the Texas Parks and Wildlife
Department in Onalaska, Texas, to benefit the
endangered red-cockaded woodpecker Under the
agreement. Champion will protect and manage a
2,000-acre mature longleaf pine stand, a type of
habitat rare in East Texas It will benefit the wood-
pecker and other sensitive species, including other
federal and state-listed wildlife, while allowing the
selective harvest of individual trees in the area.
Champion will consolidate its long-term wood-
pecker management in this area, increasing the
prospects for survival and expansion of existing
populations within the management area, and
providing a reserve population to bolster other
populations on state and federal lands in Texas.

Oregon: Logging and the
Spotted Owl

Under an agreement between the U.S. Fish and
Wildlife Service and Weyerhaeuser Co., the wood
products corporation will log on 209,000 acres in
Oregon's spotted owl country This is the first such
plan in Oregon between the Federal government
and a private timber company The Millicoma Tree
Farm agreement, known as a Habitat
Conservation Plan (HCP), will make a combination
of set-asides for the spotted owl for the first 20
years of what is at least a 50-year plan In return,
Weyerhaeuser will be protected from prohibitions
on "taking" of spotted owls-restrictions that ordi-
narily apply to the harm of protected species on
private land. There are 35 owl sites on the
Millicoma property and 10 pairs have produced
offspring Under the Millicoma plan, Weyerhaeuser
will 1) leave 1,963 acres" of existing habitat for at
least the first 20 years of the agreement, 2) achieve
by the year 2014 a landscape in which at least 40
percent of the tree farm will be in forested stands
capable of providing habitat for dispersing young
owls and 3) maintain the plan for 50 years, with

the Service having the option of extending it for
another 30 years if certain criteria related to the
status and conservation of the owl are met. The
Weyerhaeuser agreement is the third such Habitat
Conservation Plan the Service has approved with a
private timber company In 1992, the Service
approved a plan for a 383,000-acre parcel owned
by the Simpson Timber Company in northern
California; in 1993, a similar plan was approved for
the Murray Pacific Corporation's 54,000-acre hold-
ings in Lewis, Washington. 'This is a classic 'win-
win' solution, and I thank Secretary Babbitt for his
leadership and compliment the Fish and Wildlife
Service for its professional approach in handling
our application," said Charies W Bingham, execu-
tive vice president of the Weyerhaeuser Co.
"Weyerhaeuser has distinguished itself as a real
leader in the future of forest management," said
Secretary Babbitt. "The land included in this plan
will now be managed for both timber and owls,
showing that we can achieve our conservation
goals and still cut timber in an environmentally
responsible way"

Contact:

■ David Klinger, Public Affairs, Region 1
503-231-6121

■ Paul Barnum, Communications Manager,
Weyerhaeuser Co.

503-741-5431

Texas: The Brown Pelican

In 1994, brown pelicans, first listed as endangered
in 1970, successfully nested on Little Pelican Island
in Galveston Bay in Texas for the first time in more
than 40 years. Approximately 125 pairs nested and
produced 90 young.

Contact:

■ Tom Bauer, Public Affairs, Region 2
505-766-3940

282

ENDANGERED SPECIES ACT SUCCESS STORIES

Texas: Aplomado Falcon

Aplomado falcons are being reintroduced in
Cameron County, Texas, where a voluntary effort
involving local landowners, and state and federal
agency representatives resulted in the formation
of the Cameron County Wildlife Co-Existence
Committee. Through this effort, landowners were
able to express their concerns regarding nationally
mandated pesticide restrictions and offer practical
alternatives to enable traditional agriculture to
co-exist with endangered species. This spring,
aplomado falcons nested near Brownsville, Texas,
the first time this species has nested in the United
States in more than 40 years. The pair produced
one healthy chick. The Peregrine Fund, an inde-
pendent conservation group dedicated to birds of
prey has released more than 30 captive-bred
aplomado falcons at Laguna Atascosa National
Wildlife Refuge in southern Texas since 1993.
Further releases are planned.

Contact;

■ Tom Bauer, Public Affairs, Region 2
505-766-3940

■ Wayne Halvert, Chairman, Wildlife
Co-Existence Committee
210-423-7015

Ohio: A Consultation Helps Save
800 Jobs

Virginia: Virginia Round-Leaf Birch

while only 1 1 trees remain of the rare Virginia
round-leaf birch in southwest Virginia, cultivated
seedlings have increased the species' population
to 1,400 trees in 20 additional locations, moving
the US Fish and Wildlife Service to propose in
November 1994 that the species be reclassified
from endangered to the less-critical category of
threatened The Virginia round-leaf birch was first
described by botanist W W Ashe, who noticed the
trees with the unusual leaves on the banks of
Dickey Creek in Virginia in 1918 For almost 60
years, the birch was believed extinct, until a natu-
ralist rediscovered the species not far from Ashe's
original site Representatives from various govern-
ment agencies, academic institutions, the conser-
vation community and the private sector formed a
committee to study manage and protect the tree.
Private landowners are cooperating by allowing
the erection offences, the distribution of artifi-
cially-propagated seedlings, the removal of com-
peting vegetation, and by helping to stabilize creek
banks against erosion The outlook for the round-
leaf birch has improved significantly and it may
eventually be removed from the threatened list.

Contact:

■ Spence Conley, Public Affairs, Region 5
413-253-8325

■ Diana Weaver, Public Affairs, Region 5
413-253-8329

When the Meigs 31 coal mine flooded with under-
ground water in 1993, the Southern Ohio Coal
Company faced a dilemma Should they close the
mine and cause job losses, or open the mine and
risk environmental damage from the pumping of
water from the mine shaft? The company worked
with a number of federal and state agencies, and
with the U.S. Fish and Wildlife Service on feder-
ally-listed endangered species issues. Through an
informal consultation, the company and the
Service arrived at a solution that avoided or mini-
mized damage to endangered mussels when
water in the flooded mine was pumped into two
creeks that feed into the Ohio River. The mine is
again open and 800 residents still have their jobs.

ENDANGERED SPECIES ACT SUCCESS STORIES

Massachusetts: Bog "nirtle Habitat

Wetlands have been restored by The Nature
Conservancy on land the organization owns in
Massachusetts, for the benefit of the bog turtle.
This restoration will provide critical basking, nest-
ing and nursery habitat for the bog turtle

Contact:

■ Spence Conley Public Affairs, Region 5
413-253-8325

■ Frank Lowenstein, The Nature Conservancy
413-229-0232

New Jersey: Bat Conservation

The U.S. Fish and Wildlife Service completed con-
struction of a bat conservation gate on private
property at the Hibernia mine in Morris County
New Jersey during July 1994 The Hibernia mine
supports the largest known bat hibernaculum in
New Jersey and the only known hibernaculum for
the federally endangered Indiana bat in the state.
The landowner granted permission for construc-
tion of the gate to the Service and the New Jersey
State Endangered and Nongame Species Program.
This project was also supported by Bat
Conservation International, a non-profit organiza-
tion dedicated to bat conservation around the
world.

Contact:

■ Spence Conley Public Affairs, Region 5
413-253-8325

■ Mike Valent, New Jersey Endangered and
Nongame Species Program
908-735-8975

California: San Francisco Bay and
Sacramento-San Joaquin Delta

On December 15, 1994, the federal government
and the State of California agreed to a plan to pro-
tect the San Francisco Bay and Sacramento-San
Joaquin Delta estuary ecosystem, while providing
reliable water supplies to farms and cities across
the state The landmark agreement, which came
after lengthy and intensive negotiations, involved
four federal and five state agencies It is already
considered a model for solving complex resource
management issues The pact covers the delta
inland from San Francisco Bay to the confluence of
the Sacramento, the San Joaquin and a number of
smaller Northern California rivers It establishes
limits on how much fresh water can be diverted
from the estuary to agriculture and municipal
water users. The pact also aims to protect imper-
iled fish species by ensuring that the young survive
migration through the delta and that diversions do
not make breeding waters too salty The delta may
be California's most important water resource and
is the largest wetland habitat in the western
United States It provides 60 percent of the fresh
water used in California and is the source of irriga-
tion water for nearly half of the nation's fruit and
vegetable crops The December agreement estab-
lished final water quality standards for the bay-
delta issued by the Environmental Protection
Agency and included the US Fish and Wildlife
Service final designation of critical habitat for the
delta smelt, listed as a threatened species. "1 want
to congratulate all involved parties for reaching
this unprecedented agreement," said Richard
Rosenberg, chairman and chief executive officer of
the Bank of America and chair of the Water Task
Force of the California Business Roundtable. "It
demonstrates that water supply in California can
be managed in the best interests of both the econ-
omy and the environment."

Contact:

■ David Klinger, Public Affairs, Region 1
503-231-6121

■ Bill Glenn, Public Affairs, Environmental
Protection Agency

415-744-1589

284

ENDANGERED SPECIES ACT SUCCESS STORIES

Montana: Bald Eagle Viewing
Management Program

Extensive local, state and national media attention
has attracted more than 10,000 people each fall to
view the concentration of eagles on the Missouri
River below Canyon Ferry Dam. Between mid-
October and mid-December, more than 400 bald
eagles at a time gather to feed on spawning koka-
nee salmon A cooperative management plan and
public education program was developed to help
the public view the eagles while minimizing dis-
turbance to the birds Recreational and other
activities such as dredging and mining are coordi-
nated and managed A Bureau of Reclamation
Visitor Center was dedicated to informing and
educating the public about the seasonal eagle
influx, and approximately 4,200 people used the
Visitor Center in 1993, including 2,690 elementary
school children Cooperators include the US Fish
and Wildlife Service, the Montana Department of
Fish, Wildlife and Parks, the Bureau of Land
Management, the US Forest Service, Bureau of
Reclamation, municipal and county representa-
tives and private land owners.

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

■ Betsy Spettigue, Montana Department of Fish,
Wildlife and Parks

406-444-1276

Kansas: Highway Bridge
Consultations

Through consultations with the Federal Highway
Administration regarding various bridge replace-
ment projects over the past several years, the US
Fish and Wildlife Service and FHWA, along with
state wildlife and highway agencies, have devel-
oped a relationship that has seen no highway
bridge replacements either stopped or significantly

delayed when they had potential to affect bald
eagle habitat In each instance, the habitat (usually
perch trees) was either I) avoided altogether or 2)
replaced at cost in a nearby area

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

■ Tony Zahn, Public Affairs, Federal Highway
Administration

816-276-2700

Colorado: The Uncompahgre
Fritillary Butterfly

Discovered in 1978, the butterfly was threatened
over the years by collectors, trampling by live-
stock, small population size and low genetic vari-
ability and was listed as endangered by 1991
Colonies existed on U.S. Bureau of Land
Management land and on U.S. Forest Service
property Though BLM and the USPS had collecting
and grazing restrictions in place prior to listing,
adding the butterfly to the list increased its protec-
tion and placed more emphasis on managing the
fragile habitat in which the butterfly resides.
Following the listing, the US. Fish and Wildlife
Service entered into an interagency agreement to
provide recovery funding Partnerships were also
formed with the University of Nevada, Reno, and
the Colorado Natural Areas Program to carry out
preparation and implementation of a recovery
plan Since its listing, the butterfly has shown an
increase in numbers and a new large colony has
been found a little more than a mile from the origi-
nal discovery site If funding is provided for man-
agement and research in coming years, the
butterfly should continue its recovery trend.

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

■ Janet Coles, Colorado Natural Areas Program
303-866-3203 (x330)

285

ENDANGERED SPECIES ACT SUCCESS STORIES

Nebraska: Whooping Crane

Through the Partners for Wildlife program, the US
Fish and Wildlife Service has worked to restore
whooping crane roosting habitat on the Platte
River, which serves as habitat for migrating
whooping cranes which prefer to roost in wide
channels free of vegetation and other obstruc-
tions Much of the Platte that had been vegetation-
free has become thickly forested due to extensive
water impoundment and diversion throughout the
Platte River system Agreements have been signed
with the National Audubon Society and individual
private property owners to clear trees and vegeta-
tion from their property to open up habitat not
only for the endangered whooping crane, but also
for sandhill cranes, waterfowl, shorebirds and
other migrating birds dependent upon such
habitat.

Contact;

■ Mike Smith, Public Affairs, Region 6
303-236-7904

■ Dennis Sherrerd, private citizen
308-234-3938

Nebraska: Least Tern and
Piping Plover

The endangered least tern and threatened piping
plover nest on sandbars in the Platte River, and
also at commercial sand and gravel operations.
Much of the birds' natural sandbar nesting area
has disappeared; the U.S. Fish and Wildlife Service
has assisted the Platte River Whooping Crane Trust
and the Nebraska Public Power District in creating
sandbar habitat in the river channel. Vegetation is
cleared and a dredge sidecasts sand and gravel
onto cleared islands to simulate the natural nest-
ing areas of both species. To date, six of these
habitat complexes have been constructed along

the central Platte The Service has also worked
with the Nebraska Concrete and Aggregates
Association and with private mining companies, to
fence nesting areas at sand pits. The areas are
signed with "Do Not Enter" warnings and mining
personnel are informed of measures to protect the
nesting birds There has been no loss of jobs or
profits as a result of these protective measures.

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

Kansas: Bald Eagle

The Army Corps of Engineers proposed to issue a
permit for the development of Riverfront Plaza, an
outlet shopping mall, on a bank of the Kansas
River in Lawrence, Kansas. The project involved
the removal of several large trees used by bald
eagles as perch trees; the area in question was a
known use area for the species, particularly during
the cold winter months. The mall proposal became
locally divisive. The U.S. Fish and Wildlife Service
coordinated with the Corps, the Kansas
Department of Wildlife and Parks and local spon-
sors, and reached an agreement whereby permit
conditions created a habitat area which the
Service believes to be more stable and secure than
that which existed prior to the project. The mall
builders installed one-way viewing windows on
the river side of the building, enabling patrons
who might otherwise never see an eagle in the
wild, to view the birds undisturbed from inside the
shopping mall.

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

■ Marty Burke, Kansas Department of Wildlife
and Parks

913-296-2281

286

ENDANGERED SPECIES ACT SUCCESS STORIES

Kansas: Private Property and the
Bald Eagle

TWO bald eagle nests have become established in
Kansas, and both are located on private property.
The first is on agricultural land in western Kansas,
where the landowner is very protective of the
birds; he has, however, allowed the US Fish and
Wildlife Service limited access for monitoring and
banding efforts. The second nest is located on a
cooling lake operated by the Wolf Creek Nuclear
Operating Corporation. The Wolf Creek staff has
taken an active interest in this nest in terms of
protection and monitoring and has assisted the
Service in a successful effort to band the eaglets.

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

■ Mona Grimsley, Wolf Creek Nuclear Operating
Corporation

316-364-4143

Kansas: Peregrine Falcon

were laid, of which three hatched, with the
nestlings subsequently banded by Service
biologists.

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

■ Michel' Philipp, Public Information Director,
Western Resources (KPL)
913-575-1927

Kansas: Least Tern

Partners for Wildlife assisted in restoration of a
Cimarron River nesting site for least terns Salt
cedar invasion was reversed and predators were
excluded. In 1992, the colony had declined from 1 1
pairs to 1 breeding pair; following restoration
work, the colony increased to 6 breeding pairs,
which produced 7 young.

Contact:

■ Mike Smith, Public Affairs, Region 6
303-236-7904

A pair of banded peregrine falcons arrived in
downtown Topeka in March, 1993, and began to
establish a territory less than four blocks from the
State Capitol. One of their favorite perch buildings
was one belonging to the Kansas Power and Light
Co An agreement was reached with KPL limiting
access and maintenance to the roof, permitting
placement of a nest box and a constant-monitor
video camera. The company's cooperation created
considerable positive public relations, as well as
heightened public awareness of the importance of
species such as the peregrine falcon. In 1994, the
pair returned, most offen using a vacant building
owned by the City of Topeka The city cooper-
ated with the Kansas Department of Wildlife and
Parks to erect a second nest box on the building,
which was successfully used by the pair. Four eggs

New York, Pennsylvania:
Endangered Fresh Water Mussels

Riparian restoration in the form of streambank
fencing and plantings has been conducted on sev-
eral properties along French Creek in New York
and Pennsylvania. These projects will also benefit
endangered fresh water mussels, as well as pre-
serve the diversity of the globally rare community
found in the creek. The US. Fish and Wildlife
Service worked with Partners for Wildlife, The
Nature Conservancy, the Western Pennsylvania
Conservancy and volunteers in construction of the
fencing and installation of plantings. The project is
continuing.

Contact:

■ Spence Conley, Public Affairs, Region 5
413-253-8325

■ Carl Schwartz, New York Field Office
607-753-9334

ENDANGERED SPECIES ACT SUCCESS STORIES

Ohio: Peregrine Falcon

Ohio: Lakeside Daisy

Nesting peregrine falcons have been successfully
established on ledges of tall buildings in
Cleveland, Columbus, Cincinnati, Dayton, Toledo
and Akron by the Ohio Division of Wildlife. In
1993, when it became apparent that a planned
Fourth of July fireworks display in Cleveland would
coincide with the hatching of falcon chicks, the
U.S. Fish and Wildlife Service, working under an
emergency informal consultation, helped the city
maneuver the displays in a way that would not
harm the birds. Not only did the fireworks show go
ofT as scheduled, but the falcons ended up stars of
the show-at the finale, a crowd of 75,000 people
sang a lullaby for the falcon chicks.

These flowers, bright yellow and with a blossom
1 '/i to 2 inches in diameter, occur in the United
States only at a few locations in the Great L^kes
region The Lakeside daisy, which thrives in coarse
soil heavy in limestone, is threatened primarily by
limestone quarrying To enhance the flower's
chances of survival, the Ohio Division of Natural
Areas and Preserves purchased a 19-acre reserve.
The ODNAP also relocated a number of daisies
that would otherwise have been destroyed. The
US Fish and Wildlife Service has provided about
$15,000 to the State of Ohio to assist in this suc-
cessful relocation and monitoring effort.

288

Endangered Species Act:
The Rest of the Story

The Allegations and Responses

California: The Stephens' Kangaroo
Rat and Homebuyers

The Allegation

This little rodent cost 100,000 taxpayers of
Riverside County, California, $1,950 each in
"impact fees" to raise the $103 million needed to
set aside 30 square miles of habitat. Farmers lost
up to half their tillable acreage. One family lost
$75,000 in annual farm income. (Source: Timber
Industry Labor Management Committee).

The Response

Under Riverside County's Habitat Conservation
Plan for the Stephens' kangaroo rat, a mitigation
fee of $1,950 per acre of new development, not per
taxpayer, is being collected to purchase perma-
nent habitat reserves for the species, helping clear
the way for development of other areas in the
county. The mitigation fee translates into approxi-
mately $215 per home, or less than one-fourth of 1
percent of the cost of a $95,000 home.

California: The 1993 Tires

The Allegation

People's homes burned down in California
because they could not clear vegetation around
their homes due to prohibitions on such clearing
designed to protect the endangered Stephens'
kangaroo rat.

The Response

The General Accounting Office (GAO) investigated
these allegations and reported to the Congress in
June, 1994, that the California fire was fanned by
80-mile-per-hour winds, and jumped concrete
barriers, highways and a canal. According to GAO,
"while some owners continue to believe that disk-
ing around their homes prior to the fire would
have saved their homes, we found no evidence to
support these views. Homes where weed abate-
ment, including disking, had been performed were
destroyed, while other homes in the same genera!
area survived even though no evidence of weed
abatement was present. Overall, county officials
and other fire experts believe that weed abatement
by any means would have made little difference in
whether or not a home was destroyed in the
California fire " Firemen said clearing hundreds of
feet of ground would not have mattered, because
fires of such ferocity can leapfrog more than a mile
with searing ashes or hot embers. A university
professor who has studied such fires declared this
fire was something that "not even the entire U.S.
Army could have stopped." Finally GAO con-
cluded, "on the basis of the experience and views
of fire officials and other experts, the loss of
homes during the California fire was not related to
the prohibition of disking in areas inhabited by the
Stephens' kangaroo rat."

ENDANGERED SPECIES ACT: THE REST OF THE STORY

California: The Kem County Farmer Florida: The Scrub Jay

The Allegation

A "strike force" of 25 agents swooped down by
helicopter, arrested a Taiwanese immigrant farmer
in Kem County, California, and seized his tractor
for iciiiing an endangered rat and other endan-
gered species when he was unaware there were
protected animals on his property

The Response

Mr. Taung Ming-Lin, an immigrant from Taiwan,
paid $1 .5 million for arid property in California In
November, 1992, he was notified by registered let-
ter from the State of California that there were
endangered species (Tipton kangaroo rat, San
Joaquin kit fox and blunt-nosed leopard lizard) on
his property and that he needed to contact state
and federal wildlife officials to obtain permits
before proceeding with development of his land
Other California landowners in similar situations
have obtained such permits. In February, 1994, a
State fish and game representative spoke with Mr
Ming-Lin's foreman about whether appropriate
permits had been obtained for developing the
land, since endangered species were present The
representative advised Mr. Ming-Lin's son during
the same visit of the need to gain appropriate per-
mits and provided names of individuals to contact.
He advised them that cultivation should stop until
permits were obtained Two more contacts were
made by state and federal agents advising of the
need to obtain permits before a search warrant
was eventually executed on February 20, 1994, by
approximately four U.S. Fish and Wildlife Service
agents, California fish and game wardens and biol-
ogists No helicopters were used. Remains from
endangered Tipton kangaroo rats were located. A
tractor and a disc were seized under the authority
of the search warrant In May 1995, the govern-
ment dropped the charges in exchange for Mr.
Ming Un's agreement to wait 6 months before
resuming farming, to obtain the necessary federal
and state permits and to donate $5,000 to endan-
gered species protection in Kem County.

The Allegation

In Florida, a person's home is not his castle when
it comes to the Florida Scrub Jay More than 250
landowners (were) warned not to alter or remove
underbrush from their property because "any
activity which destroys scrub occupied by scrub
jays may violate (the law)." Touch that scrub and
you may land in jail for up to 1 year and pay up to
$10,000 in fines. (Source: Timber Industry Labor
Management Committee).

The Response

Letters were mailed to a large number of property
owners in Florida explaining how they may obtain
authorization to proceed with development plans.
The letters contained information, not threats.
Since the beginning of that initiative, hundreds of
authorizations to proceed have been issued by the
US Fish and Wildlife Service in Jacksonville, and
many of those were granted within a week of the
request. Brevard County has requested and
received a congressional appropriation to fund a
Habitat Conservation Plan, which, when approved
by the Service, will solve development conflicts in
that county as they relate to scrub jays Other large
projects have proceeded with HCPs or were
resolved without a need for permits. Overall, pub-
lic reaction to the scrub initiative has been one of
acceptance and cooperation. The Endangered
Species Act has been used to its fullest to help
solve conflicts related to this species.

290

ENDANGERED SPECIES ACT: THE REST OF THE STORY

Florida: Key Deer

The Allegation

To protect more than 400 head of endangered key
deer on 8,000 acres of Florida Keys, elementary
children are bused an additional 30 miles around
the habitat. A plan to build a school at a closer
location has been stalled because of opposition by
environmental groups. (Source: Timber Industry
Labor Management Committee)

The Response

The Florida key deer, listed as endangered in 1967,
inhabits some 26 islands in the lower Florida Keys
The herd currently numbers between 250 and 300.
Big Pine Key is believed to support two-thirds of
this population due to its size, predominance of
pineland, and year-round availability of fresh
water The deer need to cross US Highway 1 to
gain access to seasonal fresh water and to main-
tain genetic diversity More deer are killed each
year by vehicles (60 to 65) than are being replaced
by the herd, and half the deaths occur on US 1 In
an effort to satisfy the recovery plan goal to estab-
lish underpasses and overpasses so the deer may
safely cross the highway the key deer recovery
team needed to locate two areas that could be
used as corridors The proposed school was to be
built near one of the corridors On February 7,
1995, US Fish and Wildlife Service staff met with
representatives of Monroe County the School
Board, and the Florida Department of Community
Affairs to discuss locating the school in an existing
facility The Service agreed the revised plan would
not interfere with movement of the deer because
the proposal was for a small neighborhood school
and development will consist only of renovating
existing church buildings and no more than two
portable classrooms A vegetated buffer zone will
be maintained and traffic patterns are not
expected to increase The Service also recom-
mended development of a habitat conservation
plan (HCP) in the area while protecting endan-
gered species and pledged necessary technical
assistance to expedite a successful HCP.

North Carolina: Timber and the
Red-Cockaded Woodpecker

The Allegation

When the endangered Red-cockaded woodpecker
arrived on Ben Cone's property in North Carolina,
the Endangered Species Act put 1,000 acres of his
land ofT limits to him He has spent $8,000 to pay
biologists to make sure he is following the strin-
gent rules and figures he has lost $18 million in
timber that is tied up in the protected zone. To
protect his remaining land from being occupied by
the bird and consequently falling under federal
land control. Cone had no choice but to change his
timber management practices to try to harvest the
pines before they become old enough to attract
woodpeckers and prevent him from using the rest
of his land (National Wilderness Institute,
Endangered Species Blueprint)

The Response

Mr. Cone was initially offered the option of devel-
oping a Habitat Conservation Plan, which allows
incidental take of an endangered or threatened
species in pursuit of otherwise lawful activity-
such as logging. Many organizations and develop-
ers are participating in such plans Mr Cone
declined In the meantime, he did submit a man-
agement plan to the US Fish and Wildlife Service
in Atlanta, which was approved. He is managing
his land, and logging it.

291

ENDANGERED SPECIES ACT: THE REST OF THE STORY

North Carolina: The U.S. Army and
the Red-Cockaded Woodpecker

Oregon: The Butterfly and the
Golf Course

The Allegation

The U.S. Army can defend against the armies of
Saddam Hussein, but they are losing their battles
with the Red Cockaded Woodpecker Several areas
of Fort Bragg, North Carolina, have been closed
and construction of a needed maintenance divi-
sion complex is on hold because of this bird,
which may also threaten harvest of the Southern
Forest Some call the Red Cockaded Woodpecker
the spotted owl of the future. (Source: Timber
Industry Labor Management Committee)

The Response

There are 182 million acres of timberland in the
South (90 percent privately-owned and 10 percent,
federal and state-owned). The US Fish and
Wildlife Service estimates that between 500 and
1 ,000 groups of Red Cockaded Woodpeckers may
still survive on private lands. Based on the current
habitat guidelines for Red Cockaded Woodpeckers,
1,000 groups would require 60,000 acres (i e , 60
acres per group), or less than 1 percent of the total
private timberland in the South. This is not consid-
ered a threat to the Southern Forest, which has
already been harvested three complete times.
Construction of the Arm/s maintenance division
complex has gone forward at Fort Bragg following
completion of the consultation process with the
Service, and no necessary training activities have
been stopped because of endangered or threat-
ened species. In the case of the Army projects,
consultation was the key Endangered Species Act
listings rarely require a substantial change in plans
for development A 1992 General Accounting
Office audit found that of 18,21 1 consultations
between 1988 and 1992, 999 percent went for-
ward unchanged or with minor modifications.

The Allegation

In a cover story entitled, "The Butterfly Problem,"
in the January, 1992 issue of The Atlantic, the
authors portrayed an Oregon developer whose
lifelong dream of carving fairways on a section of
the Oregon coast was snuffed in the morass of
Endangered Species Act protection of an endan-
gered butterfly.

The Response

U.S. Fish and Wildlife Service personnel helped the
developer obtain an incidental take permit under
the Endangered Species Act, recognizing that
development of a Habitat Conservation Plan in
connection with the golf course would assist the
long-term survival of the butterfly The developer,
however, was unable to satisfy Oregon's land use
planning laws on grounds unrelated to the ESA,
and the project was abandoned.

292

ENDANGERED SPECIES AC1

IE REST OF THE STOF

Texas: Endangered Species Lower
Property Values

Texas: Species Stalls Real
Estate Sale

The Allegation

The presence of endangered species has lowered
property values in Texas.

The Response

This allegation is frequently associated with anec-
dotal reports from individual landowners or with a
study conducted by the Texas and Southwestern
Cattleraisers Association. Land values in the
Austin area, to cite one example, did decline after
the mid-1980s, but most of that decline occurred in
1987 because of the Savings and Loan crisis. The
golden-cheeked warbler-the species usually
blamed for the loss of property values- was not
listed as endangered until 1 99 1 . The study by the
TSCE^ purported to show that land values in 33
Texas counties affected by endangered species
listings had declined more than land values in
other Texas counties This study was analyzed by
Dr. Stephen Meyer of the Massachusetts Institute
of Technology (MIT), who found that TSCRA had
analyzed the economic data incorrectly and that
the data did not in fact support the conclusion that
property value declines were associated with the
presence of endangered species.

The Allegation

Margaret Rector owns 15 acres of commercially-
zoned property in Travis County Texas, which is
habitat for the golden-cheeked warbler Because
an endangered species is present on her property,
she is unable to either develop or sell it. Since the
land cannot be developed, the value of the
acreage has declined and Ms Rector alleges she
has not only lost a good deal of money, but now
cannot find a buyer at all because of the presence
of an endangered species on her land

The Response

The US. Fish and Wildlife Service informed Ms
Rector that development of her property required a
permit under either Section 7 or Section 1 0 of the
Endangered Species Act No application for such a
permit has been received Land values in the
Austin area declined significantly in the wake of
the Savings and Ljaan crisis, and the majority of
the area's property value decline occurred at that
time, prior to the listing of the golden-cheeked
warbler It is true that buyer concern about the
presence of endangered species has been an issue
in Austin real estate sales. The proposed Balcones
Canyonland Conservation Plan would address
problems such as that experienced by Ms. Rector

293

ENDANGERED SPECIES ACT: THE REST OF THE STORY

Texas: Critical Habitat and tiie
Golden-Clieelced Warbler

The Allegation

The US Fish and Wildlife Service proposed 20
million acres in 33 Texas counties as critical habi-
tat for the golden-cheeked warbler.

The Response

The Service never had plans for any proposal of
the magnitude described above. There is less than
800,000 acres of potential warbler habitat in the
entire State of Texas. Secretary Babbitt announced
in October 1994 that designation of critical habitat
would not be necessary for the conservation of the
species if habitat conservation plans were put into
place. Work on those plans is proceeding.

Texas: The Widov/s Story

The Allegation

In testimony before the Senate Environment and
Public Works Committee in April, 1992, a represen-
tative of the National Cattlemen's Association told
of a widow near Austin, Texas, who wanted to
clear her fencerow of brush, only to be threatened
with prosecution by the U.S. Fish and Wildlife
Service.

The Response

The woman was advised by the Service that her
clearing of a 30-foot wide, one mile-long fencerow
might harm endangered songbird nesting habitat,
but after Service representatives met with her and
assessed the situation, she was given the go-
ahead to clear the fencerow.

Texas: Cedar and Private Land

The Allegation

The U.S. Fish and Wildlife Service sues private
landowners in Texas who try to control cedar on
their property

The Response

The Service supports private property rights and
has repeatedly said that control of cedar regrowth
and ongoing rancring practices do not harm the
habitat of the golden-cheeked warbler.

Utah: Domestic Geese and the
Kanab Ambersnail

The Allegation

The U.S. Fish and Wildlife Service forced domestic
geese in Utah to vomit to see if their stomachs
contained endangered Kanab ambersnails. The
landowner was threatened with a fine of $50,000
for each snail eaten by a goose. (Source: National
Wilderness Institute, Endangered Species
Blueprint)

The Response

Some geese were removed from a pond inhabited
by Kanab ambersnails None were forced to vomit,
nor was anyone threatened with a fine for snails
consumed by the geese.

294

ENDANGERED SPECIES ACT: THE REST OF THE STORY

Critical Habitat and Development

The Allegation

When the U.S. Fish and Wildlife Service declares
"critical habitat" for an endangered or threatened
species, private landow/ners are prevented from
developing their land Critical habitat designations
"lock up" large sections of land, prevent most
human activities and are the equivalent of setting
aside wildlife sanctuaries Critical habitat designa-
tions prevent all economic development.

The Response

A "critical habitat" designation means that federal
agencies must consult writh the Fish and Wildlife
Service when their activities may adversely modify
habitat designated as critical to the recovery of the
species If it is determined that a project will jeop-
ardize the species, the Fish and Wildlife Service is
required by the Endangered Species Act to offer
"reasonable and pmdent" alternatives that will
protect the habitat while permitting the project to
proceed More than 99 percent of all projects do
go forward "Critical habitat" designations apply
only to actions authonzed, funded or carried out
by federal agencies Critical habitat does not affect
private landowners unless they plan a develop-
ment project that requires federal funding, per-
mits, or some other action by a federal agency A
critical habitat designation in no way sets aside an
area as a wildlife sanctuary or wilderness area.

California: The Stephens'
Kangaroo Rat

The Allegation

Ms. Cindy Domenigoni has had more than half of
her farm's 3,100 acres of dry land wheat, barley
alfalfa and beef cattle severely impacted by the
listing of the Stephen's kangaroo rat She has been
forced to idle 800 acres of her land due to restric-
tions even though her family has farmed and
co-existed with the species for the last 120 years.
The federal protections afforded the rat have
stripped her of her fundamental property rights,
diminished her land values and drained her fam-
ily's financial resources. She has incurred nearly
$400,000 in lost income and direct and indirect
expenses due to K-rat restrictions. (Summary of
testimony of Cindy Domenigoni before the House
Merchant Marine and Fisheries Committee, July 7,
1993, in Woodland, California).

The Response

The U.S. Fish and Wildlife Service is not familiar
with 800 idled acres, but is aware that 400 acres
of the Domenigoni farm originally was idled when
it was believed that it may have been habitat for
the Stephens' kangaroo rat. A Service biologist
subsequently examined the land in question and
determined that the land was not K-rat habitat.
The Service then granted permission to the
Domenigoni farm to proceed with farming on the
acreage, in December, 1993. Ongoing farming
activities in the Riverside County area have not
generally been restricted because of K-rat habitat,
and farming does not require a grading permit.
Grading permits are required for new activities on
the land, not continuing activities.

295

ENDANGERED SPECIES ACT: THE REST OF THE STORY

Economics and the Endangered
Species Act

The Allegation

The Endangered Species Act has brought develop-
ment across the country to a halt.

The Response

Properly implemented and enforced, the
Endangered Species Act successfully balances
economic needs with conservation needs-as
evidenced by the U.S. Fish and Wildlife Service's
consultation record. Endangered Species Act list-
ings rarely require a substantial change in plans
for development. A 1992 General Accounting
Office audit found that of 1 8,2 II consultations
between 1988 and 1992, 99 9 percent went for-
ward unchanged or with minor modifications.
A Massachusetts Institute of Technology study,
"Endangered Species Listings and State Economic
Development," completed by Stephen M. Meyer in
1994 for the Project on Environmental Politics and
Policy, concluded that ".. the evidence strongly
contradicts the assertion that the listing of species
under the Endangered Species Act has had harm-
ful effects on state economies."

TUna dve GKlcroach

The Allegation

The next thing you know, they'll try to put cock-
roaches on the endangered species list Too late.
They already have The TUna Cave Cockroach is
found in Puerto Rico is a candidate for inclusion
on the list At least 40 percent of the candidates for
endangered species are rodents, beetles, snails
and moths. It will require $144 million to list and
study these candidates. (Source: Timber Industry
Labor Management Committee).

The Response

The Tuna Cave Cockroach is not on the list of
Endangered and Threatened Plants and Animals.
It is on the candidate list, but the U.S. Fish and
Wildlife Service has spent no money on the
species. Rodents, beetles, snails and moths com-
prise 36 percent of the candidates for listing, and it
is estimated that the study and listing of all 619
species would cost $19.6 million, not $144 million.

Economic Development and the
Endangered Species Act

The Allegation

Listing of species under the Endangered Species
Act hurts economic development

The Response

Between 1988 and 1992, only 6 in 5,000 projects
was actually stopped because of the Endangered
Species Act. The remainder-99.9 percent-went
forward without major changes.

296

ENDANGERED SPECIES ACT: THE REST OF THE STORY

Indiana: A Farmer Loses His Fann

The Allegation

A southwestern Indiana fanner named Bart Dye
stands to lose his farmland which has been in his
family since 1865. The U.S. Fish and Wildlife
Service considers the protection of two species,
mussels in a river adjacent to Mr Dye's land, and
the possibility that someday a bald eagle may
decide to land on his property-none of which
have been sighted-threatens to rob Mr. Dye of the
use of his farm and prevent him from ever owming

The Response

The Farmers Home Administration foreclosed on a
982-acre farm in Martin County Indiana, in 1984.
Because of a national Memorandum of
Understanding with the U.S. Fish and Wildlife
Service, FmHA subsequently requested the Service
to evaluate the farm for wetlands and endangered
species. Subsequent evaluation showed that bald
eagles, Indiana bats. Eastern fanshell mussels and
rough pigtoe mussels all resided on part of the
land or in a nearby river. The Service recom-
mended establishment of several conservation
easements, which consisted of a 10-acre wetland,
a forested bluff adjacent to the White River con-
sisting of approximately 256 acres for the protec-
tion of the bats and eagles, and two 100-foot
buffers along the river. All of those actions
resulted in a total of 1 1 acres of suitable cropland
being withdrawn from the total inventory. The
original owner, Mr. Bart Dye, has exercised lease-
back buy-back rights to the farm. Those rights
expire in June, 1996, at which time Mr. Dye must
buy the fann or FmHA must offer it for sale to the
public The foreclosure has been through a judicial
review and FmHA's actions regarding acquisition
of the property have been upheld. The easements
will not restrict any future owner's access or use of
the fann and the price paid by any future pur-
chaser will be reduced as a result of the
easements.

California: Fairy Shrimp and
Housing Costs

The Allegation

The cost of a house in the City of Roseville,
California, is up $6,000 as a result of the listing of
the fairy shrimp.

The Response

There is a mitigation program involving the fairy
shrimp in which developers are required to pay for
either restoration of habitat or acquisition, or a
combination of both, when the vernal pools that
support the fairy shrimp are on land marked for
development. The $6,000 figure is possible if deal-
ing with a single homesite; if considering a large
subdivision, the number would likely be much less
per home. The mitigation is required when it is
apparent that development will cause vernal pools
to be filled. That can be avoided, but it can also
involve significantly larger parcels of land because
the pools are dependent on watershed, which may
in turn span a number of homesites. Biologists in
California are aware of the vernal pool/develop-
ment problem, and are trying to help developers
work through it.

297

ENDANGERED SPECIES ACT: THE REST OF THE STORY

Michigan: A Fee Or A Fine

The Allegation

A farmer was told he would be allowed to return
to farming if he gave the government one square
mile of his property and a mitigation fee of
$300,000 When the farmer refused this offer, he
was fined $300,000. That was 10 years ago. The
farmer is still fighting.

The Response

U.S. Fish and Wildlife Service law enforcement
agents in Ann Arbor and the Field Supervisor in
East Lansing, who deal with all of Michigan, recall
no such case The choice of a fee or a fine by a
court seems highly unusual. The only scenario
may involve something to do with an easement,
which in any case would not involve threatened or
endangered species.

California: Farmer Fined,
Loses Land

The Allegation

A farmer in California, to avoid jail, reached agree-
ment with the U.S. Fish and Wildlife Service to pay
a $5,000 fine, surrender 60 acres of his 160-acre
farm and then ordered by the court to sell the
remaining 100 acres. Why? He had plowed his field
and there on his property was apparently some
sort of lizard that the Service had deemed threat-
ened or endangered.

The Response

This case involved an agribusiness concern, Tule
Vista Farms and the incident in question occurred
in 1989. It was not adjudicated until 1994 The Tule
Vista Farms investigation was initiated jointly by
the California Departmeftit of Fish and Game and
the U.S. Fish and Wildlife Service when a state
biologist noticed that 160 acres of endangered
species habitat had been destroyed by disking. The
subsequent investigation and charges eventually
resulted in a plea agreement, whereby the Tule

Vista Farms agreed to deed the entire 160-acre
parcel to the Service, with 60 acres representing
land of value equivalent to compensation, mitiga-
tion and fines in excess of $93,000 The Service
purchased the remaining 99 35 acres with money
provided by The Nature Conservancy and the
acreage then became part of the Pixley National
Wildlife Refuge There was no court order to sell
the remaining acreage, surrender of the entire par-
cel for fines levied and for acquisition was the
result of a plea agreement

Uncle Sam and Takings' Claims

The Allegation

The U.S. government is facing well over $1 billion
in takings claims In California alone, property
owners who can afford legal costs are winning
about 50 percent of their cases and a report by the
Congressional Research Service says property
owners won regulatory takings cases before the
courts in 1990 more often than not

The Response

The $1 billion figure represented the total amount
plaintiffs were seeking in all pending cases alleg-
ing takings by the United States, whether or not
the claims involve land regulation and regardless
of the likelihood that a court would find a taking or
the amount a court would actually award if it did
find a taking. According to the Congressional
Research Service, in 1993 the largest single source
of decisions addressing takings claims against the
United States was federal involvement with failing
financial institutions; only a third of 1993 decisions
involved land regulation For 1992 and 1993, the
Congressional Research Service reports that the
government won 62 of 67 takings cases decided.
In 1991, the government won 18 of 23 decided
cases, and in 1990, 8 of 14. Only a handful of tak-
ings claims based on endangered species protec-
tions have been filed before the Court of Federal
Claims. The United States has never lost a takings
case under the Endangered Species Act

ENDANGERED SPECIES ACT: THE REST OF THE STORY

Kansas: Neosho Madtom Catfish
Shuts Down Business

California: Home Destroyed By
Federal Regulators

The Allegation

In Kansas, the Shepard family had spent over 100
years, or three generations, scooping gravel near
the Neosho River. Regulators went mad about the
madtom catfish. They shut down the Shepards
because the madtom inhabited the Neosho River
and they thought the fish might be threatened, so
the Shepards' gravel scooping days were over

The Response

The State of Kansas listed the Neosho Madtom
catfish as threatened, and also listed critical habi-
tat for the species, under the Kansas Endangered
Species Act, in 1978. The State of Kansas subse-
quently halted gravel scooping operations until
state and federal biologists could determine what,
precisely, is needed to recover the fish, which
inhabits gravel areas in streams where it spawns
and feeds Alternate sites continued to be avail-
able to be worked by private operators for gravel
recovery. The US Army Corps of Engineers now
has jurisdiction over gravel removal activities in
the Neosho River and the State of Kansas has
since lifted its gravel removal moratorium. Mr.
Shepard and other gravel operators have applied
for the necessary permit from the Corps of
Engineers. The Corps will consult with the US.
Fish and Wildlife Service as required under the
Federal Endangered Species Act. The Service
listed the Neosho Madtom catfish as threatened in
1990.

The Allegation

When Michael Rowe, of Winchester, California,
saved enough money to add an extension to his 1-
bedroom home on his 20-acre ranch, he found he
was in a Stephens' kangaroo rat study area He
could have hired a biologist for $5,000-but if he
found a single rat, the addition still would be ille-
gal If no rats were found, he then would have to
pay the government $40,000 for a rat reserve else-
where In essence, the home was destroyed by
federal regulators before it left the drawing board.

The Response

Stephens' kangaroo rat study areas were areas
established within part of a short-term Habitat
Conservation Plan (HCP) established by the
Riverside County Habitat Conservation Planning
Agency; the county agreed not to grant grading
permits within study areas, unless a biologist
demonstrated that no Stephens' kangaroo rats
inhabited the area In the case of Mr Rowe's prop-
erty, the cost of hiring a biologist would not have
cost $5,000, but $500; a U.S. Fish and Wildlife
Service agent offered to conduct the study for free,
but Mr. Rowe declined the offer. The mitigation
fee, for the Stephens' kangaroo rat reserve, was
established in an agreement under the HCP The
fee-$l,000 (not $40,000)-goes to a reserve
acquisition fund Mr. Rowe's home, which is still
occupied, was not destroyed.

299

ENDANGERED SPECIES ACT: THE REST OF THE STOR>

California: The Fly and the Hospital Texas: Species Halts Logging

The Allegation

Construction of a $600 million hospital in
Southern California was halted by eight flies The
hospital had to dedicate 40 percent of the site to
permanent fly habitat on the hospital grounds to
proceed with the project

The Response

Hospital construction, in Colton, California, was
never halted An agreement was reached with the
developer regarding the Delhi sands flower-loving
fly before construction began The developer
agreed to set aside 10.27 acres as a reserve for the
species The hospital site is 76 acres in size, and
the habitat constitutes 13 5 percent of the total
acreage Construction remains underway. (The
Delhi sands flower-loving fly, in a family different
from that of the common housefly, is orange-
brown in color, approximately an inch in length
and has dark brown oval spots on the upper
abdomen. It is found in five locations in southern
California and prefers fine, sandy soils. It is an
important pollinator of flowers, and its movement
in flight is similar to that of the hummingbird).

Washington: One Owl
Gets Your Land

The Allegation

The Constitutional interpretation right now is that
if an owl flies and lands on your land, that owl gets
all of your land and you are not compensated.

The Response

The U.S. Fish and Wildlife Service does not, and
cannot, take property from a landowner because
an owl lands there.

The Allegation

A $100,000 logging operation north of Houston
was halted due to an abandoned bald eagle's nest.

The Response

An active eagle nest was discovered amid timber
that was to be logged on land north of Houston,
worth approximately $100,000 Upon inspection,
US Fish and Wildlife Service biologists recom-
mended-but did not order-that the owner of the
logging operation set aside a percentage of the
stand. The owner complied voluntarily and pro-
ceeded to log the remaining stand of timber. The
Service has pledged to revisit the logging opera-
tion each year to help the owner determine what,
if any, further logging may be implemented. (Bald
eagles and their nests, eggs and young are pro-
tected under the Bald and Golden Eagle Protection
Act and the Migratory Bird Treaty Act, as well as
the Endangered Species Act).

Arizona: The Flooded Road

The Allegation

A road in Greenlee County, Arizona, was flooded
in November 1994. When the county tried to repair
the dirt road, the U.S. Fish and Wildlife Service
threatened a daily fine of $20,000 if work
continued.

The Response

The dirt road, which crosses a stream bed in sev-
eral locations without benefit of bridges, was
washed away in at least one location. When the
Arizona governor declared an emergency, the U.S.
Fish and Wildlife Service immediately conducted
an emergency consultation and advised Greenlee
County authorities to proceed with necessary
repairs, requesting only that workmen spend as
little time as possible in the stream bed. The road
was repaired. The U.S. Fish and Wildlife Service
made no threat of a $20,000-a-day fine.

300

ENDANGERED SPECIES ACT: THE REST OF THE STORY

Tennessee: Columbia Dam

The Allegation

The Tennessee Valley Authority (TVA) began con-
struction of a 12,600-acre dam in 1973 By 1983,
the TVA had spent $84 million but was forced to
halt construction because of a listed mussel and
plant species. The dam is not complete and TVA
has no plans to finish it.

7^ Response

The construction of Columbia Dam, begun in 1973,
was halted in 1983 when it became apparent that
the reservoir could jeopardize the existence of two
endangered freshwater mussel species Since
1983, two additional endangered mussels and one
endangered plant have been located In the project
area. When the project was stopped, TVA had
spent $84 million on the dam, finishing 90 percent
of the concrete portion and 60 percent of the earth
and rockfill portion Conservation measures were
agreed to by the U.S. Fish and Wildlife Service that
would have made completion of the dam possible,
but TVA eventually elected to abandon the project
altogether. However, the Service continues to
work with TVA to explore alternate reservoir sites.
TVA anticipates finishing an Environmental Impact
Statement in the Fall of 1995 on one location that
would seem to satisfy all the water requirements
and have no adverse impact on endangered or
threatened species.

The Squawffish

The Allegation

People are paid to catch squawfish in the Columbia
River while at the same time, $150 million is being
spent to recover the species in the Colorado River.

The Response

The squawfish in the Columbia and Colorado
Rivers are distinctly different species, the northern
squawfish {Ptychochelius oregonensis) being a resi-
dent of the Columbia and living in clear water and
averaging 13 pounds, and the Colorado squawfish
{Ptychochelius lucius) Inhabiting the Colorado and
living in warm, turbid water and averaging 70
pounds The predator removal program on the
Columbia is an outgrowth of studies in the 1980s,
which found that 80 percent of the known juvenile
salmon predation was attributable to the northern
squawfish Since 1990, nearly 600,000 squawfish
have been removed from the Lower Columbia and
Snake Rivers, which lowered the predation rate on
juvenile salmon 31 percent by 1994. It is believed
that the predation rate may be reduced by 50 per-
cent or more within 10 years The program, con-
sidered highly successful and now an integral part
of the salmon management efforts in the
Columbia Basin, rewards all sport fishermen for
northern squawfish over 1 1 inches in length. They
are paid $3 per fish for the first 100, $4 for the next
300, and $5 per fish over 400. The Bonneville
Power Administration funds the program, which is
administered by the Pacific States Marine Fisheries
Commission in cooperation with the Washington
and Oregon Departments of Fish and Wildlife. BPA
has provided $5 4 million annually since 1993 ($8
million a year from 1990 through 1992) The pro-
gram has been approved under the endangered
species program of the National Marine Fisheries
Service to protect depleted salmon stocks The
Colorado squawfish recovery plan, approved
August 6, 1991, identifies $3 2 million for 1992-
1997 and a total of $53 million to recover four
fishes (Colorado squawfish, bonytail chub, hump-
back chub and the razorback sucker) in the
Colorado River system.

301

ENDANGERED SPECIES ACT: THE REST OF THE STOf

Texas: The Fountain Darter
and the Military

The Allegation

Restrictions under the Endangered Species Act for
the fountain darter are negatively affecting military
installations in Texas.

The Response

The fountain darter, a small fish, inhabits surface
waters dependent upon the Edwards Aquifer for
their instream flows Several military bases in the
San Antonio area have relied upon Edwards
Aquifer water for years The military bases' with-
drawal amount is roughly 3 percent of the total
withdrawn from the aquifer Recently, the installa-
tions have been voluntarily incorporating water
conservation measures and seeking alternate
water supplies due to general concerns that over-
all aquifer withdrawal levels have been greater
than recharge levels The US Fish and Wildlife
Service has encouraged the military installations
to evaluate what effects their water withdrawal
may have on federally-listed species dependent
upon the Edwards Aquifer, including the fountain
darter. The military has consulted with the Service
on several new and amended missions and none
have been stopped The Service continues to
encourage the military to examine potential base-
wide effects to federally-listed species and to
review means by which any identified effects can
be minimized Because of the proactive approach
the military is using, the Service anticipates that
military water needs can continue to be met with-
out negatively impacting the resources of the
Edwards Aquifer

Texas: The Dream House

The Allegation

The Wall Street Journal described the case of Marj
and Roger Kreuger, who spent $53,000 on a lot for
their dream house in Texas Hill Country But they
and other owners were barred from building
because the endangered golden-cheeked warbler
was found in the canyons adjacent to their land.

The Response

The Kreugers, and others, purchased lots in a sub-
division near Austin on land that was golden-
cheeked warbler habitat. Landowners like the
Kreugers, who qualify for the streamlined Habitat
Conservation Plan process recently instituted by
Secretary Babbitt, can receive a permit within 45
to 60 days from the time of application Should
they elect to begin construction, they must then
pay a $1,500 mitigation fee, which goes to a fund
used to manage warbler habitat At least 17 such
landowners have applied under the program and
are expected to receive permits soon There is no
record of the Kreuger family filing an application.

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Full text of "Endangered Species Act, Washington, DC : oversight hearing before the Task Force on Endangered Species Act of the Committee on Resources, House of Representatives, One Hundred Fourth Congress, first session, on the impact of the Endangered Species Act on the nation"

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